TMX Finance, LLC v. Grina Merlinda / Private Person
Claim Number: FA2203001986806
Complainant is TMX Finance, LLC (“Complainant”), represented by Nathan C Belzer of Belzer PC, Georgia, USA. Respondent is Grina Merlinda / Private Person (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <titlemax.us> (the “disputed domain name”), registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
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.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 3, 2022; the Forum received payment on March 3, 2022.
On March 4, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <titlemax.us> disputed domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. The Registrar has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 8, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2022 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@titlemax.us. Also on March 8, 2022, 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 April 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a loan company that uses its trademarks in connection with its financial services, including automobile title pawn loans, automobile title pledge loans, temporary loans, installment loans, and, in some states, personal loans and other financial services.
Complainant claims rights in the TITLEMAX trademark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. TITLEMAX, United States Reg. No. 3,044,986, registered on January, 17, 2006) (hereinafter collectively referred to as the “TITLEMAX Mark”).
Complainant further contends that Respondent’s disputed domain name is identical to Complainant’s TITLEMAX Mark as it contains the TITLEMAX Mark in its entirety and merely adds the country-code top level domain (“ccTLD”) “.us.” In addition, Complainant claims that Respondent has no rights or legitimate interests in the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith.
Complainant also alleges that the disputed domain name resolves to a website that competes with Complainant’s website, promoting users access to a variety of financial and loan services, including title loans and personal loans, that are virtually identical to the services offered under the TITLEMAX Mark. Moreover, Complainant claims that Respondent uses the disputed domain name to phish for, or otherwise fraudulently acquire, personal and financial information of users for Respondent’s own commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant has rights in the TITLEMAX Mark based on its trademark registrations with the USPTO for the TITLEMAX Mark. Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). In addition, the Panel finds that the disputed domain name is identical to Complainant’s TITLEMAX Mark, that Respondent lacks rights or legitimate interests in the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith.
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 disputed domain name should be cancelled or transferred:
(1) the disputed 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 disputed domain name; and
(3) the disputed domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 TITLEMAX Mark based on its registration of the mark with the USPTO (e.g., Reg. No. 3,044,986, registered on January, 17, 2006). Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”)
The addition of a ccTLD to an otherwise recognizable mark does not distinguish the disputed domain name from the TITLEMAX Mark under Policy ¶ 4(a)(i). The addition of a ccTLD to a complainant’s mark is irrelevant in determining whether the disputed domain name is confusingly similar. See MIGROS-GENOSSENSCHAFTS-BUND v. Tayfun yalcin, FA 1621184 (Forum July 8, 2015) (“In light of the fact that Respondent’s disputed domain name incorporates Complainant’s whole mark and merely adds the ccTLD “.us,” the Panel here finds that the disputed domain name is identical to Complainant’s MIGROS mark.”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
As Respondent did not respond to the Complaint, Respondent cannot have carried its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name. The Panel notes that, given the facts here, Respondent would have been hard-pressed to furnish availing arguments, had it chosen to respond:
In support, the Panel finds that Respondent is not commonly known by the disputed domain name or any name similar to it, nor has Complainant authorized or licensed Respondent to use its TITLEMAX Mark in the disputed domain name. In addition, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use because Respondent uses the disputed domain name to divert Internet users who seek Complainant’s website to Respondent’s resolving website. Use of a domain name to divert users for a respondent’s own benefit and to offer competing services may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy 4(c)(iii).”).
Further, Respondent uses the disputed domain name to phish for, or otherwise fraudulently acquire, personal and financial information of users for Respondent’s own commercial gain. When users click the “Get Started Now” link on the resolving website, users are taken through a series of questions that ask for very sensitive personal and financial information such as bank information, including the routing and account number of bank account and bank name, drivers’ license numbers, and social security numbers. Such use of the disputed domain name demonstrates that Respondent lacks rights and legitimate interest in the disputed domain name. See United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (“Respondent uses the <uspscouriers.com> domain name both to sell services competing with the business of Complainant and to phish for personal identification information from Internet users. Neither of these uses of the domain name constitutes 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) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
This Panel finds that, based on the record, the Complainant has demonstrated the existence of Respondent’s bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy as described below.
First, the use of a disputed domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion or a false association with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).
Second, the Panel concludes that the fame of the TITLEMAX Mark, which was used and registered by Complainant in advance of Respondent’s registration of the disputed domain name, renders it wholly implausible that Respondent created the disputed domain name independently. Moreover, where a disputed domain name is so obviously connected with a well-known name, product or service, its use by someone with no connection to the name, product or service indicates opportunistic bad faith. Therefore, the Panel concludes that Respondent had actual knowledge of Complainant’s rights in the TITLEMAX Mark, and this constitutes bad faith under Policy ¶ 4(a)(iii). It therefore strains credulity to believe that Respondent had not known of Complainant or its TITLEMAX Mark when registering the disputed domain name. Thus, as here, prior knowledge of a complainant’s trademarks before registering a confusingly similar domain name is sufficient to find bad faith under Policy ¶4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it).
Third, the Panel finds that Respondent registered and/or uses the disputed domain name in bad faith. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to offer competing goods or services is generally demonstrative of bad faith disruption for commercial gain. See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services).
Fourth, the Panel finds bad faith registration and use pursuant to Policy ¶ 4(b)(ii) based upon Respondent’s pattern of bad faith domain name registration. Evidence of previous UDRP decisions against a respondent establishes a pattern of bad faith registration and creates a presumption of bad faith under Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondent’s previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”). Complainant lists a couple of UDRP cases in which Respondent was involved in the past. Where a respondent has been subject to more than one past UDRP proceeding and has had the domain name in those cases transferred to the complainant, the Panel may find bad faith per Policy ¶ 4(b)(ii). Therefore, the Panel concludes that Respondent has engaged in a pattern of bad faith.
Finally, the Panel finds that Respondent acted in bad faith since Respondent used the disputed domain name to phish for confidential user information, such as social security numbers, drivers’ licenses, and bank information. Under Policy ¶ 4(a)(iii), phishing for user information is generally considered evidence of bad faith registration and/or use. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <titlemax.us> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: April 13, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page