Funding Circle Limited v. james john / fc
Claim Number: FA2204001991778
Complainant is Funding Circle Limited (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is james john / fc (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fundingcircleusa.com>, registered with Tucows Domains 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 11, 2022; the Forum received payment on April 11, 2022.
On April 11, 2022, Tucows Domains Inc. confirmed by e-mail to the Forum that the <fundingcircleusa.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 April 12, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 2, 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@fundingcircleusa.com. Also on April 12, 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 May 11, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it provides a platform for lenders to lend money to smaller businesses. Specifically, over at least the last decade, Complainant has raised funds from more than 92,000 investors, including some of the largest and most sophisticated investors around the world. Complainant then takes those funds and invests them in established, creditworthy businesses in different sectors and regions. By providing these services, Complainant gives its investors diverse investment opportunities and attractive returns while also offering small businesses fast, easy access to financing through business loans to grow their business. This unique business model has made Complainant one of the best-capitalized lending platforms in the world, with Complainant having originated more than $10.7 billion in loans to more than 81,000 businesses across the globe. In fact, Complainant and its FUNDING CIRCLE brand have been widely recognized for its valuable services, as evidenced by it being named the “Best Small Business Loan for low APR” by U.S. News & World Report in April 2019. Complainant asserts rights in the FUNDING CIRCLE mark through its registration of the mark in the United States in 2018. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is identical or confusingly similar to its FUNDING CIRCLE mark as it incorporates the mark in its entirety, merely adding the geographic term “USA” and the “.com” generic top-level domain (gTLD). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use the FUNDING CIRCLE mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. The resolving website is currently inactive. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent had actual notice of Complainant’s rights in the mark when registering the disputed domain name. Respondent uses the disputed domain name to send fraudulent emails in furtherance of a phishing scheme. Finally, the disputed domain name resolves to an inactive website. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark FUNDING CIRCLE and uses it to provide a platform for lenders to lend money to smaller businesses.
Complainant’s rights in its mark date back to 2018.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used in furtherance of a fraudulent email phishing scheme; the signature block of the fraudulent emails displays Complainant’s mark and distinctive logo.
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 disputed domain name incorporates Complainant’s FUNDING CIRCLE mark in its entirety, merely adding the geographic term “usa” and the “.com” generic top-level domain (gTLD). The mere addition of a geographic term and gTLD is not sufficient to differentiate a disputed domain name from a mark. See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”). The Panel therefore finds that the <fundingcircleusa.com> domain name is confusingly similar to Complainant’s FUNDING CIRCLE mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its FUNDING CIRCLE mark. Respondent is not commonly known by the disputed domain name: past panels have looked at the available WHOIS information to determine whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information shows that the registrant is “james john / fc”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme, by impersonating Complainant’s employees; the signature block of the fraudulent emails displays Complainant’s mark and distinctive logo. When a respondent uses the disputed domain name to impersonate the complainant through email, the Panel may find the respondent is not using the disputed domain name in compliance with Policy ¶¶ 4(c)(i) or (iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be 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)). Therefore the Panel finds Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
Furthermore, the resolving website is inactive. Using a disputed domain name to host a website that lacks substantive content is not a bona fide offering of goods and services or legitimate noncommercial or fair use. See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). The Panel therefore finds, on this ground also, that the disputed domain name is not used in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, uses the disputed domain name to impersonate Complainant in fraudulent emails. Using a disputed domain name to fraudulently pass off as complainant indicates bad faith. See Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum Dec. 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”); see also SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum Oct. 29, 2014) (“The Panel finds that Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”). The Panel therefore finds bad faith registration and used under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the fraudulent emails displays Complainant’s mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fundingcircleusa.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 12, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page