Braviant Holdings, LLC v. Host Master / 1337 Services LLC
Claim Number: FA2108001958120
Complainant is Braviant Holdings, LLC (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., Minnesota, USA. Respondent is Host Master / 1337 Services LLC (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <balancecreditpromocode.com>, registered with Tucows, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 4, 2021; the Forum received payment on August 4, 2021.
On August 4, 2021, Tucows, Inc. confirmed by e-mail to the Forum that the <balancecreditpromocode.com> domain name is registered with Tucows, Inc. and that Respondent is the current registrant of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows, Inc. 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 August 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@balancecreditpromocode.com. Also on August 5, 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 August 31, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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
Complainant, Braviant Holdings, LLC, is a financial services provider offering services related to personal loans and lines of credit. Complainant has rights in the BALANCE CREDIT mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,767,454, registered June 4, 2019). Respondent’s <balancecreditpromocode.com> domain name is confusingly similar to Complainant’s mark since it incorporates Complainant’s mark in its entirety, adding the descriptive term “promo code” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <balancecreditpromocode.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant licensed or permitted Respondent to use the BALANCE CREDIT mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Respondent uses Complainant’s BALANCE CREDIT mark in connection with the sale of the same financial services offered by Complainant under the mark. Consumers attempting to visit Complainant’s website at <balancecredit.com> to examine or request personal loan and line of credit services may inadvertently visit Respondent’s site.
Respondent registered and uses the <balancecreditpromocode.com> domain name in bad faith because Respondent uses a confusingly similar domain name to divert Internet traffic to its website and offer competitive financial services. Moreover, Respondent uses the disputed domain name to “phish” for consumer information. Also Respondent registered the <balancecreditpromocode.com> domain name with constructive and/or actual knowledge of Complainant’s rights in the BALANCE CREDIT mark based on the fact that Respondent acquired the domain name after Complainant’s use and registration of its trademark and that Respondent uses the domain name to sell identical services to those offered by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Braviant Holdings, LLC (“Complainant”), of Chicago, IL, USA. Complainant is the owner of the domestic registration for the mark BALANCE CREDIT which it has used continuously since at least as early as August 2013 in connection with its provision of personal loans, lines of credit, and related financial services. Complainant also owns the registration for the <balancecredit.com> domain name which resolves to Complainant’s primary website.
Respondent is Host Master / 1337 Services LLC (“Respondent”), of Charlestown, Saint Kitts and Nevis. Respondent’s registrar’s address is listed as Toronto, Ontario, Canada. The Panel notes that the <balancecreditpromocode.com> domain name was registered on or about June 29, 2019.
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”).
Complainant claims rights in the BALANCE CREDIT mark through its registration with the USPTO (e.g., Reg. No. 5,767,454, registered Jun. 04, 2019). Registration of a mark with a national trademark agency is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel here finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <balancecreditpromocode.com> domain name is confusingly similar to Complainant’s BALANCE CREDIT mark because it incorporates Complainant’s mark in its entirety, adding the descriptive term “promo code” and the gTLD “.com.” Complainant contends that the term “promo code” is descriptive of Complainant’s business since it refers to the financial services offered by Complainant. Adding a descriptive term that alludes to the complainant’s business and a gTLD to the complainant’s mark generally does not negate confusing similarity under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”); see additionally Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel here finds that the disputed domain names are identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
Rights or Legitimate Interests
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”). The Panel here finds Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <balancecreditpromocode.com> domain name because Respondent is not commonly known by the disputed domain name, nor has Complainant licensed or permitted Respondent to use the BALANCE CREDIT mark. Under Policy ¶ 4(c)(ii), when no response is submitted, relevant WHOIS information may demonstrate that a respondent is not commonly known by a disputed domain name. See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”). Additionally, lack of authorization to use a mark is further evidence that a respondent is not commonly known by the mark. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). Here, the WHOIS information identifies “Host Master / 1337 Services LLC” as the registrant of the domain name and Respondent provides no evidence of authorization to use the mark or indication of being commonly known by the mark. Additionally, Complainant asserts that it has not licensed or permitted Respondent to use the BALANCE CREDIT mark. The Panel here finds that Respondent is not commonly known by the domain names under Policy ¶ 4(c)(ii).
Furthermore, Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent uses Complainant’s BALANCE CREDIT mark in connection with the sale of the same financial services offered by Complainant under the mark. Complainant alleges that consumers attempting to visit Complainant’s website at <balancecredit.com> to examine or request personal loan and line of credit services may inadvertently visit Respondent’s site. Use of a disputed domain name to sell competing goods or services does not constitute bona fide offerings of goods or services or 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.”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots of Respondent’s website, which advertises financial services related to personal loans in competition with Complainant. The Panel here finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent registered and uses the <balancecreditpromocode.com> domain name in bad faith because Respondent uses a confusingly similar domain name to divert Internet traffic to its website and offer competitive financial services. Use of a confusingly similar domain name to divert Internet users and offer competing goods or services is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”); see also LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see additionally Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). The Panel again notes that Complainant provides a screenshot of Respondent’s website which features financial services related to Complainant business. The Panel here finds bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Furthermore, Complainant contends that Respondent uses the disputed domain name to “phish” for consumer information. Consumers who incorrectly, although reasonably, believe the resolving website belongs to Complainant may request personal lines of credit or loans on the site, thereby subsequently login to the site or submit personal information, such as social security or bank account information. Per Policy ¶ 4(a)(iii), phishing for consumers’ information is itself evidence of bad faith. See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”); see additionally Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers). The Panel here finds Respondent’s phishing activity additionally supports a finding of bad faith per Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <balancecreditpromocode.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: September 14, 2021
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