Opportunity Financial, LLC v. Syed J. Hussain
Claim Number: FA2110001968347
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Liz Brodzinski of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Syed J. Hussain (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploansapp.com>, registered with TurnCommerce, Inc. DBA NameBright.com.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 8, 2021; the Forum received payment on October 8, 2021.
On October 11, 2021, TurnCommerce, Inc. DBA NameBright.com confirmed by e-mail to the Forum that the <opploansapp.com> domain name is registered with TurnCommerce, Inc. DBA NameBright.com and that Respondent is the current registrant of the name. TurnCommerce, Inc. DBA NameBright.com has verified that Respondent is bound by the TurnCommerce, Inc. DBA NameBright.com 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 October 19, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 8, 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@opploansapp.com. Also on October 19, 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.
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, Opportunity Financial LLC, is a financial services company that provides personal short-term installment loans. Complainant has rights in the OPPLOANS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,042,920, registered Sep. 13, 2016). Respondent’s <opploansapp.com> domain name is nearly identical and confusingly similar to Complainant’s mark as it fully incorporates the OPPLOANS mark, merely adding the generic industry-relevant term “app” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <opploansapp.com> domain name as it is not commonly known by the disputed domain name and has not been authorized to use the OPPLOANS 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. Instead, the disputed domain resolves to a holding page that offers the domain name for sale.
Respondent registered and uses the <opploansapp.com> domain name in bad faith. Respondent offers the domain name for sale at a price significantly higher than similar domains. Respondent also creates confusion with Complainant for its own commercial gain. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <opploansapp.com> domain name.
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 asserts rights in the OPPLOANS mark through its registration with the USPTO. Registration of a mark with a trademark agency such as the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”). Complainant provides evidence of registration with the USPTO (e.g. Reg. No. 5,042,920, registered Sep. 13, 2016). The Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <opploansapp.com> domain name is nearly identical and confusingly similar to Complainant’s mark as it fully incorporates the OPPLOANS mark, merely adding the generic industry-relevant term “app” and the “.com” gTLD. Addition of generic and/or descriptive terms and a gTLD does not necessarily negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant argues that Respondent lacks rights and legitimate interests in the <opploansapp.com> domain name as it is not commonly known by the disputed domain name and has not been authorized to use the OPPLOANS mark. When no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). Additionally, lack of authorization to use a mark further evidences that a respondent lacks rights and legitimate interests in a mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies the registrant as “Host Master / 1337 Services LLC” and nothing in the record rebuts Complainant’s assertion that it never authorized Respondent to use the OPPLOANS mark in the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent does not use the <opploansapp.com> domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use since the disputed domain merely resolves to a holding page that offers the domain name for sale. Using a disputed domain to promote the sale of the domain name is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Altria Group, Inc. v. Stacey Scott / Baldwin Inc, FA1410001584163 (Forum Nov. 12, 2014) (finding that the respondent’s only use of the resolving website was to advertise the sale of the associated domain name indicated that the respondent lacked rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)). Complainant provides a screenshot of the website at the disputed domain, which offers the domain name for sale for $2,750 – significantly higher than prices for other similar domains. The Panel finds that Respondent lacks rights or legitimate interests in respect of the the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <opploansapp.com> domain name in bad faith since Respondent offers the domain name for sale at a price significantly higher than prices for similar domains. Offering to sell a disputed domain name may suggest bad faith per Policy ¶ 4(b)(i), particularly where the offered price significantly exceeds the out of pocket costs associated with registration of the domain name. See Retail Royalty Company and AE Direct Co LLC v. Whois Foundation / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin, FA 1821246 (Forum Jan. 13, 2019) (“Respondent lists the disputed domain name for sale for $5,759, which is a price well in excess of out of pocket costs. Such an offering can evince bad faith under Policy ¶ 4(b)(i).”). Complainant provides a screenshot of the website at the disputed domain, which offers the domain name for sale for $2,750 – over 200 times higher than other similar domains. The Panel finds this is evidence of bad faith per Policy ¶ 4(b)(i).
Complainant also argues that Respondent creates confusion with Complainant for its own commercial gain. Use of a confusingly similar domain name to commercially benefit from the goodwill associated with a complainant suggests bad faith attraction for commercial gain per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Complainant argues that Respondent’s use of Complainant’s entire OPPLOANS mark in the disputed domain name will cause Complainant’s customers to mistakenly arrive at Respondent’s site, where Respondent attempts to commercially benefit from the sale of the domain name. The Panel finds this is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant argues that Respondent registered the <opploansapp.com> domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark. Per Policy ¶ 4(a)(iii), actual knowledge of a Complainant’s trademark rights is sufficient to establish bad faith and can be demonstrated by the totality of circumstances surrounding registration and use of a disputed domain name. See Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Forum May 9, 2006) (“The Panel also finds that there are reasonable grounds to infer that Respondent had actual notice of Complainant’s rights in the mark as well. Complainant’s Radio & Records Magazine is a leading business journal covering an industry towards which Respondent’s services are marketed. Therefore, the Panel finds that Respondent registered the <radioandrecordsmagazine.com> domain name despite having constructive and actual notice of Complainant’s rights in the RADIO & RECORDS mark. Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Complainant argues that Respondent’s incorporation of the mark in the disputed domain name and Respondent’s offer to sell the domain name for a price substantially higher than prices for similar domain names shows Respondent had actual knowledge of Complainant’s rights in the mark. The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark and registered and uses the domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <opploansapp.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
November 15, 2021
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