Braviant Holdings, LLC v. James Slavin
Claim Number: FA2110001968369
Complainant is Braviant Holdings, LLC (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., Minnesota, USA. Respondent is James Slavin (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <balancecredit.loans>, registered with Name.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 9, 2021; the Forum received payment on October 9, 2021.
On October 14, 2021, Name.com, Inc. confirmed by e-mail to the Forum that the <balancecredit.loans> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 October 18, 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@balancecredit.loans. Also on October 18, 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 November 14, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is a well-known financial services provider offering a host of services related to personal loans and lines of credit.
Complainant has rights in the BALANCE CREDIT mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <balancecredit.loans> domain name is confusingly similar to Complainant’s BALANCE CREDIT mark. Respondent incorporates the mark in its entirety and adds the “.loans” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <balancecredit.loans> domain name as Respondent is not commonly known by the at-issue domain name nor did Complainant authorize Respondent to use the BALANCE CREDIT mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a webpage that offers services and goods that compete with Complainant’s business.
Respondent registered and used the <balancecredit.loans> domain name in bad faith as Respondent offers services and products that compete against Complainant. Respondent also uses the domain name to phish for internet users’ personal information. Respondent had actual knowledge of Complainant’s rights in the BALANCE CREDIT mark due to its use of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the BALANCE CREDIT trademark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the BALANCE CREDIT trademark.
Respondent uses the at-issue domain name to offer products that compete with Complainant’s products and phish for personal information
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registrations for the BALANCE CREDIT mark demonstrates Complainant’s rights in such mark for the purposes of 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).”).
Respondent’s <balancecredit.loans> domain name contains Complainant’s entire BALANCE CREDIT trademark less its domain name impermissible space. The domain name concludes with the top-level domain name “.loans”. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the <balancecredit.loans> domain name from Complainant’s BALANCE CREDIT mark under the Policy. Therefore, the Panel concludes that Respondent’s <balancecredit.loans> domain name is confusingly similar to Complainant’s BALANCE CREDIT trademark pursuant to Policy ¶ 4(a)(i). The Panel notes that in Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 the panel found that “[a] TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLD. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.” Numerous other decisions have similarly held that syntactic necessity renders a domain name’s generic top-level component (or the removal of impermissible characters, such as a space from a trademark) extraneous when considering confusing similarity under the Policy. However, within the last decade hundreds of lesser-known gTLDs ‑e.g. ‘.top’, ‘.xyz’, and ‘.loans’‑ have become available for general use. Here, the more recently permissible gTLD, “loans,” is suggestive of Complainant’s business and thus only adds to the confusion between Complainant’s trademark and Respondent’s domain name.
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 the at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “James Slavin” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <balancecredit.loans> domain name or by BALANCE CREDIT. The Panel therefore concludes that Respondent is not commonly known by the <balancecredit.loans> domain name for the purposes of Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name).
Respondent uses the at-issue domain name to address a website that offers services competing with services offered by Complainant under its BALANCE CREDIT mark. Using the at-issue domain name in this manner does not indicate a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also, General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“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).”). Likewise, Respondent’s use of the domain name to facilitate a phishing scheme to collect personal data does not indicate a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent uses the at-issue domain name to address a website that offers services that compete with services offered by Complainant. Using the at-issue domain name in this manner demonstrates bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (finding that the respondent’s use of the at-issue domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)), see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Respondent also uses the at-issue domain name to obtain personal information from internet users. Respondent may then use such information or sell it. Respondent’s phishing for personal private data further shows Respondent’s bad faith registration and use of <balancecredit.loans>. See, Kaiser Foundation Health Plan, Inc. v. Hines, FA1632754 (Forum Sept. 18, 2015) (“Respondent’s use of the … domain name to engage in a phishing scheme is in itself evidence of Respondent’s bad faith”); see also, Morgan Stanley v. Xu, FA1600534 (Forum Feb. 16, 2015) (“Respondent’s use of the disputed domain name in furtherance of a phishing scheme constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii)”); see also, Hess Corp. v. GR, FA770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use where it fraudulently attempted to acquire the personal and financial information of Internet users through the use of a domain name confusingly similar to a another’s mark)
Finally, Respondent had actual knowledge of Complainant’s rights in the BALANCE CREDIT mark when it registered <balancecredit.loans> as a domain name. Respondent’s actual knowledge is evident from the notoriety of the BALANCE CREDIT trademark; from Respondent’s incorporation of Complainant’s trademark into the at-issue domain name along with the suggestive top-level “loans”; and from Respondent’s use of <balancecredit.loans> to impersonate Complainant in furtherance of a phishing scheme. Respondent’s registration and use of the <balancecredit.loans> domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <balancecredit.loans> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 15, 2021
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