loanDepot.com, LLC v. Li Jin Dong
Claim Number: FA1805001785835
Complainant is loanDepot.com, LLC (“Complainant”), represented by Hani Sayed of Rutan & Tucker LLP, California, USA. Respondent is Li Jin Dong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loanndepot.com>, registered with HiChina Zhicheng Technology Limited.
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 May 9, 2018; the Forum received payment on May 9, 2018.
On May 11, 2018, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <loanndepot.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the names. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 May 15, 2018, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of June 4, 2018 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@loanndepot.com. Also on May 15, 2018, the Chinese language 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 7, 2018, 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 is a nonbank consumer lender offering home mortgage, refinance, equity, and personal loan products. Complainant registered the mark LOANDEPOT in the United States in 2010. In addition, Complainant owns common law rights to the LOANDEPOT and LOANDEPOT.COM marks dating back to at least 2009.
Complainant alleges that the disputed domain name is confusingly similar to its LOANDEPOT mark, as Respondent incorporates the mark entirely and merely misspells the word “loan,” by adding an additional “n,” in the domain name.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Further, Respondent is not authorized, licensed, or permitted to use Complainant’s mark and is not commonly known by the domain name as the WHOIS information of record lists registrant as “Li Jin Dong.” Additionally, Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to cause consumer confusion and as “lead generators” to divert Complaint’s customers and potential customers to competing loan providers, and compete unfairly for Complainant’s customer base. Respondent’s typosquatting is an independent basis for finding that Respondent lacks any rights or legitimate interests.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith as Respondent owns a number of domain names beyond that typically necessary for an ordinary business. Further, Respondent’s disputed domain name disrupts Complainant’s business, and is used to attract Internet users, for commercial gain, by creating a likelihood of confusion with Complainant’s mark. Respondent’s typosquatting is independent evidence of bad faith. Lastly, Respondent had actual knowledge of Complainant’s rights in the LOANDEPOT and LOANDEPOT.COM marks prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark LOANDEPOT and uses it to offer nonbank consumer lender home mortgage, refinance, equity, and personal loan products.
Complainant’s rights in its mark date back to at least 2010.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website that offers products and 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.”).
Preliminary Issue: Language of Proceeding
The Panel notes that the Registration Agreement is written in Chinese, thereby making Chinese the language of the proceedings.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, the Panel finds that Respondent is conversant in English because the disputed domain name contain only English words, and the resolving web pages for the disputed domain name contains content exclusively in the English language. Other panels have made the same finding. See loanDepot.com v. Li Jin Dong FA1802001771647 (Forum Mar. 26, 2018) (stating “persuasive evidence has been adduced by Complainant to suggest the likely possibility that the [Li Jin Dong] is conversant and proficient in the English language”); Bank of America Corporation v. Li Jin Dong, FA1711001759835 (Forum Dec. 21, 2017); ZB, N.A., a national banking association, dba Zions First National Bank v. Yinsi Baohu Yi Kai Qi (Hidden by Whois Privacy Protection Service) / Jin Dong Li, Li Jin Dong D2017-1785 (WIPO Jan. 5, 2018).
Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
The disputed domain name is confusingly similar to Complainant’s LOANDEPOT mark because it incorporates the entire LOANDEPOT mark and merely misspells the word “loan,” by adding an additional “n,” in the domain name. An intentional misspelling of a mark in a domain name does not typically distinguish said domain name from a finding of confusing similarity per Policy ¶ 4(a)(i). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent is not permitted, licensed, or authorized to use Complainant’s mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). Here the WHOIS information identifies the registrant of the disputed domain name as “Li Jin Dong / Li Jin Dong.” Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Further, Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a website containing advertising links to products and services that compete with those of Complainant. Use of a domain name to divert Internet users to a website offering services competing against a complainant may not represent a recognized fair use per Policy ¶¶ 4(c)(i) & (iii). See LendingTree, LLC v. Domain Admin / Whois Privacy Corp., FA1512001654032 (Forum Feb. 4, 2016) (holding that the 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). Consequently, the Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use, and the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply) 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, Respondent is using the disputed domain name to disrupt Complainant’s business and to attract, Internet users for commercial gain, by creating a likelihood of confusion with the Complainant’s mark. Such circumstances can substantiate a finding of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); 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). Consequently, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent has engaged in typosquatting: the word “loan” is misspelled in the disputed domain name. Typosquatting can demonstrate bad faith per Policy ¶ 4(a)(iii) where a respondent is intentionally misspelling a complainant’s mark to capitalize on the typographical error. See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”). Thus the Panel finds that Respondent’s typosquatting is independent evidence of bad faith registration and use.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <loanndepot.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 7, 2018
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