Opportunity Financial, LLC v. James Slavin
Claim Number: FA2208002008765
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is James Slavin (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploans.cash>, registered with NameCheap, Inc..
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 17, 2022; the Forum received payment on August 17, 2022.
On August 17, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <opploans.cash> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 19, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 8, 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@opploans.cash. Also on August 19, 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 September 15, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, Opportunity Financial, LLC, operates as a financial services company that provides short-term installment loans. Complainant claims 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 September 13, 2016). Respondent’s <opploans.cash> domain name incorporates Complainant’s OPPLOANS mark in its entirety, and adds the .cash generic top-level domain (“gTLD”) to form.
Respondent lacks rights or legitimate interests in the <opploans.cash> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its mark in the disputed domain name. Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead passes off as Complainant.
Respondent registered and uses the <opploans.cash> domain name in bad faith. Respondent attracts users for commercial gain while passing off as Complainant to phish for users’ personal information while purporting to offer competing services. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the 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 <opploans.cash> 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 claims rights in the OPPLOANS mark through its registration with the USPTO (e.g., Reg. No. 5,042,920, registered September 13, 2016). Registration with the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See H-D Michigan, LLC v. Private Whois Service, FA 1006001328876 (Forum July 12, 2010) (finding that “Complainant has sufficiently registered its HARLEY-DAVIDSON mark with the USPTO to prove Complainant’s rights in the mark according to Policy ¶ 4(a)(i), regardless of the fact that Respondent lives or operates outside the United States.”). The Panel finds that Complainant has rights in the OPPLOANS mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <opploans.cash> domain name is identical or confusingly similar to Complainant’s OPPLOANS mark. Under Policy ¶ 4(a)(i), the addition of a gTLD is irrelevant when determining whether a disputed domain name is identical or confusingly similar to a protected mark. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Respondent’s <opploans.cash> domain name fully incorporates Complainant’s OPPLOANS mark and adds the “.cash” gTLD. The Panel finds that Respondent’s domain name is identical or confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant has proved this element.
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 finds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <opploans.cash> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed to Respondent any rights in the OPPLOANS mark. Under Policy ¶ 4(c)(ii), information in the record that reveals that a registrant’s name is materially different from the disputed domain name may be used to determine that a respondent is not commonly known by a disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM , FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Further, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. 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). Respondent’s identity is shielded by a privacy service in the disputed domain name’s WHOIS information. However, the registrar, NameCheap Inc., revealed the Respondent as “James Slavin”. Additionally, there is no evidence to suggest that Respondent was authorized to use Complainant’s 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 further argues that Respondent uses the <opploans.cash> domain name in order to pass off as Complainant. Impersonating a complainant in a confusingly similar domain name’s resolving webpage is neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). Respondent uses the disputed domain name’s resolving webpage to impersonate Complainant through the prominent use of Complainant’s mark and logo. To further pass off as Complainant, Respondent also purports to offer competing loan services The Panel finds that Respondent does not use the <opploans.cash> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant contends that Respondent uses the OPPLOANS mark in the <opploans.cash> domain name with intent to attract Internet users in bad faith. A respondent’s use of a domain name that is obviously connected to a complainant’s mark indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use). Further, use of a disputed domain name to offer goods competing with a complaint may illustrate a respondent’s bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Additionally, use of a disputed domain name to impersonate a complainant may support a finding of bad faith under Policy ¶ 4(b)(iv). See Indeed, Inc. v. Zhiteng Sun, FA 1751940 (Forum Nov. 1, 2017) (finding that the respondent's use of <lndeed.net> to misrepresent itself as the complainant by imitating the complainant’s website design supported a finding of bad faith). Respondent incorporates the entirety of Complainant’s mark in the disputed domain name. Additionally, Respondent registered and uses the confusingly similar disputed domain name to divert unsuspecting users to Respondent’s own webpage that offers products in direct competition with Complainant. Finally, Respondent used the disputed domain name to pass off as Complainant by displaying Complainant’s mark and logo on the resolving webpage. The Panel finds that Respondent uses the <opploans.cash> domain name with intent to attract Internet users with a false impression of association with Complainant in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant argues that Respondent uses and registered the <opploans.cash> domain name in a bad faith attempt to perpetuate a phishing scheme. Generally, using a disputed domain name to fraudulently phish for information is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). 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).”). Respondent uses the disputed domain name to attempt to extract valuable personal information from users with the use of the goodwill associated with Complainant’s mark to promise fraudulent financial services. This is evidence that Respondent registered and uses the domain name in bad faith to facilitate a phishing scheme under Policy ¶ 4(a)(iii).
Complainant asserts that Respondent registered the <opploans.cash> domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark. Actual notice may be determined by looking at the respondent’s specific use of the mark, such as to impersonate the complainant. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Complainant’s OPPLOANS mark is entirely incorporated in Respondent’s <opploanscredit.com> domain name. Respondent uses the disputed domain name’s resolving webpage to impersonate Complainant. The Panel finds that Respondent had actual knowledge of Complainant’s rights in the OPPLOANS mark under Policy ¶ 4(a)(iii) and registered and uses the domain name in bad faith.
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 <opploans.cash> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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