Chrysalis Holdings, LLC v. Megan Payne
Claim Number: FA1706001734328
Complainant is Chrysalis Holdings, LLC (“Complainant”), represented by Meaghan H. Kent of Venable LLP, Washington D.C., USA. Respondent is Megan Payne (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <newpayusa.com>, registered with GoDaddy.com, LLC.
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 June 2, 2017; the Forum received payment on June 2, 2017.
On June 4, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <newpayusa.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 June 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 26, 2017 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@newpayusa.com. Also on June 6, 2017, 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 June 28, 2017, 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, Chrysalis Holdings, LLC, is a well-established accredited lender who uses the NEWDAY USA mark to provide and market its products and services.
Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,388,826, registered Aug. 20, 2013).
Respondent’s <newpayusa.com> is confusingly similar as it merely alters one letter of Complainant’s mark (switching the “d” in “day” to a “p”) and adds the generic top level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the <newpayusa.com> domain name. Respondent is not commonly known by the domain name and Complainant has not granted respondent permission or license to use the NEWDAY USA mark for any purpose. Respondent is not using its domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the domain name to cause consumer confusion by diverting Complainant’s customers to Respondent’s website, where it purports to offer competing payday loan services.
Respondent has registered and used the <newpayusa.com> domain name in bad faith. Respondent uses the disputed domain name to create confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a service on its website, in order to divert Internet users from Complainant to Respondent’s <newpayusa.com> website for commercial gain. Further, Respondent must have had knowledge of Complainant’s rights in the NEWDAY USA mark because of its use and presence in commerce for numerous years prior to the registration of the <newpayusa.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO trademark registration for its NEWDAY USA mark.
Respondent registered the at-issue domain name subsequent to Complainant’s acquisition of rights in the NEWDAY USA mark.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the <newpayusa.com> domain name to divert Complainant’s customers and potential customers to Respondent’s website where Respondent offers services that compete with those of Complainant.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the NEWDAY USA mark with the USPTO establishes its rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <newpayusa.com> domain name contains a misspelling of Complainant’ trademark, substituting the mark’s “d” in the term “day” with a “p.” The domain name’s syntactically impermissible spaces are removed, and the domain name is ended with a required top-level, here “.com.” The resulting slight differences between the at-issue domain name and Complainant’s trademark are insufficient to differentiate one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s NEWDAY USA mark pursuant to Policy ¶ 4(a)(i). See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”).
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 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 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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond and as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Megan Payne.” The record before the Panel contains no evidence that might otherwise tend to prove, contrary to the WHOIS information, that Respondent is commonly known by the at-issue domain name. The Panel therefore concludes that for the purposes of Policy ¶ 4(c)(ii) Respondent is not commonly known by the at-issue domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the confusingly similar <newpayusa.com> domain name to lure Complainant’s customers and potential customers to Respondent’s <newpayusa.com> website so that it may compete unfairly for Complainant’s customer base. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See LendingTree, LLC v. Domain Admin / Whois Privacy Corp., FA1512001654032 (Forum Feb. 4, 2016) (holding that Respondent’s use of the disputed domain name to hold itself out to the public as a competing loan service did not give rise to any legitimate interest in the domain name).
Given the foregoing, 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 pursuant to Policy ¶ 4(a)(ii).
The at‑issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶4 (b) circumstances are present as well as other circumstances which lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As discussed above regarding rights and interests, Respondent uses the confusingly similar <newpayusa.com> domain name to address a website which offers services that compete with those offered by Complainant. Such use of the domain name demonstrates bad faith registration and use under Policy ¶ 4(a)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum October 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”); see also, Moneytree, Inc. v. Alkebu Boyles, FA1409001579548 (Forum Oct. 23, 2014) (holding that use of the domain name to promote loans using Complainant’s mark in an unauthorized manner constituted bad faith).
Additionally, Complainant’s NEWDAY USA mark is well-known. In light of the mark’s notoriety and Respondent’s use of its confusingly similar domain name to address a website offering services that compete with those offered by Complainant, there is little doubt that Respondent was aware of Complainant and the NEWDAY USA trademark before it registered the at-issue domain name. Clearly, Respondent registered and used the <newpayusa.com> domain name to inappropriately capitalize on Complainant’s NEWDAY USA trademark, rather than for some benign reason. Registering a domain name with knowledge of another’s rights therein is further indication of Respondent’s bad faith under Policy ¶4(a)(iii). See also 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 "actual knowledge of Complainant's 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 <newpayusa.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 28, 2017
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