Opportunity Financial, LLC v. David Rodriguez
Claim Number: FA2102001933621
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Liz Brodzinski of Banner & Witcoff, Ltd., Illinois, USA. Respondent is David Rodriguez (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploans2021.com>, registered with eNom, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 25, 2021; the Forum received payment on February 25, 2021.
On February 26, 2021, eNom, LLC confirmed by e-mail to the Forum that the <opploans2021.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 4, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 24, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@opploans2021.com. Also on March 4, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 29, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <opploans2021.com> domain name is confusingly similar to Complainant’s OPPLOANS mark.
2. Respondent does not have any rights or legitimate interests in the <opploans2021.com> domain name.
3. Respondent registered and uses the <opploans2021.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Opportunity Financial, LLC, is a financial services company that provides a variety of loans. Complainant holds a registration for the OPPLOANS mark with the United States Patent and Trademark Office (USPTO) (Reg. No. 5,042,920. Registered on Sep. 13, 2016).
Respondent registered the <opploans2021.com> domain name on September 29, 2020, and uses it to offer services that compete with Complainant’s offerings and to collect user information to sell to third parties.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant has rights in the OPPLOANS mark through its registration with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <opploans2021.com> domain name incorporates Complainant’s OPPLOANS mark and simply adds the generic date “2021” and a gTLD. These changes do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”). Therefore, the Panel finds that Respondent’s <opploans2021.com> domain name is confusingly similar to Complainant’s OPPLOANS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent is not commonly known by the <opploans2021.com> domain name. Respondent is not authorized to use the OPPLOANS mark. The WHOIS information lists “David Rodriguez” as the registrant of the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Complainant argues that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use but rather to compete with Complainant. Using a disputed domain name to offer competing services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”). Complainant provides evidence showing that Respondent uses the disputed domain name to offer competing services and to solicit personal information from users, including email addresses and Social Security numbers. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent uses the <opploans2021.com> domain name and Complainant’s OPPLOANS mark to compete with Complainant, for bad faith commercial gain. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the OPPLOANS mark because Respondent incorporated Complainant’s OPPLOANS mark into the <opploans2021.com> domain name and the corresponding website, directing users to competing loan services. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the OPPLOANS mark when it registered the dispute domain name, in bad faith under Policy ¶ 4(a)(iii). See WordPress Foundation v. mich delorme / mich d dots tlds, FA1410001584295 (Forum Nov. 25, 2014) (“Because Respondent here relies on the WORDPRESS mark in the disputed domain name and also makes use of Complainant’s services at the resolving page, the Panel finds that Respondent had actual knowledge of Complainant’s mark, and that such knowledge evidences Policy ¶ 4(a)(iii) bad faith.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <opploans2021.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 30, 2021
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