QC Holdings, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1502001603564
Complainant is QC Holdings, Inc. (“Complainant”), represented by Bradley P. Hartman of Hartman Titus PLC, Arizona, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <www-lumenalending.com> ('the Domain Name'), registered with Internet.bs Corp.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 5, 2015; the Forum received payment on February 5, 2015.
On February 9, 2015, Internet.bs Corp. confirmed by e-mail to the Forum that the <www-lumenalending.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 February 10, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2015 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@www-lumenalending.com. Also on February 10, 2015, 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 March 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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's contentions can be summarised as follows:
Complainant has a US trade mark registration for LUMENA LENDING issued July 8, 2014 for provision of loans having begun providing such financial services on February 14 2014.
The Domain Name is confusingly similar to the Complainant's LUMENA LENDING trade mark It incorporates the Complainant's trade mark in its entirety adding only the prefix 'www-' which stands for world wide web and fails to distinguish the Domain Name from the Complainant's LUMENA LENDING trade mark.
Respondent has chosen the Domain Name because it is a predictable misspelling of www.lumenalending.com and this is typo squatting. It has been chosen because it is confusingly similar to and easily mistaken for the Complainant's LUMENA LENDING trade mark and the URL for the website where the Complainant offers its services.
The addition of 'www-' to the Complainant's trade mark does not significantly change it. Addition of punctuation or a gTLD is irrelevant to the Policy for these purposes.
As such the Complainant has satisfied Policy 4(a)(i).
Respondent has no rights or legitimate interests in the Domain Name It is not commonly known by LUMENA LENDING. Complainant has not licensed its mark to any third party. Respondent is not an authorised vendor, supplier or distributor of the Complainant's services.
The Domain Name is being used to resolve to a web site that uses the Complainant's trade mark to confuse users into believing that they are visiting a web site associated with the Complainant and also contains payperclick links to third party web sites offering financial services not connected with the Complainant. Respondent is attempting to hold itself out as the Complainant.
Respondent has registered the Domain Name to take advantage of innocent typographical errors made by Internet users seeking the Complainant's web site. Typo squatting is evidence of a lack or rights and legitimate interests in the Domain Name.
The Respondent is luring visitors maliciously into giving personal information on financial forms and this is not a legitimate use.
Use of a Domain Name to provide competing and unrelated links to third party businesses is not a bona fide offering of goods and services or a legitimate non-commercial or fair use.
Respondent registered the Domain Name in bad faith. At the time it registered the Domain Name the Complainant's trade mark LUMENA LENDING was already in use in commerce, the Complainant was already operating a web site at www.lumenalending.com and Complainant's trade mark was already the subject of an application for a federal trade mark registration.
The evidence shows that the Respondent is using the Domain Name in part to collect e mail addresses and personal information from Internet users to purportedly redirect users to competing websites offering consumer lending services. Respondent's competing use of the Domain Name constitutes disruption.
By promoting consumer lending services and referring consumers to unaffiliated businesses using Complainant's LUMENA LENDING trade mark and payperclick links the Respondent has attempted to commercially benefit unfairly and opportunistically from the goodwill associated with Complainant's trade mark.
Use of the Domain Name in the field of consumer lending means unsuspecting misled individuals may provide the Respondent with personally identifiable information. The Domain Name's strong association with the Complainant’s trade mark gives an air of false legitimacy which may fool consumers into sharing personal financial information or entering into financial transactions with disreputable lenders over which the Complainant has no control.
Respondent is probably receiving compensation in the form of click through fees for collection of data and contact information of consumers seeking loans, Respondent is attempting to profit by creating a likelihood of confusion as to Complainant's affiliation with the Domain Name and web sites linked to it.
Respondent has engaged in the practice of typo squatting by intentionally registering a domain name that is a misspelling of the URL associated with Complainant's website with the intent of diverting Internet users for commercial gain.
The Domain Name has been registered and used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has a US trade mark registration for LUMENA LENDING issued July 8, 2014 for provision of loans having begun providing such financial services on February 14 2014.
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(e), 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 (Nat. Arb. 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.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's LUMENA LENDING mark, the 'www' indicating world wide web, a hyphen and the gTLD .com. The addition of the generic term ‘www’ and a punctuation mark in the way of a hyphen does not serve to distinguish the Domain Name from the Complainant’s trade mark.
See Sony Kabushiki Kaishav EOS1/EOS-1, Inc. FA 493110 (Nat Arb. Forum July 15, 2005)(Respondent's www-sony,com domain name is confusingly similar to the Complainant’s SONY mark, as the Domain Name incorporates Complainant's mark and adds a 'www' prefix, a hyphen and the generic top level domain .com)
The gTLD .net does not serve to distinguish the Domain Name from the LUMENA LENDING mark, which is the distinctive component of the Domain Names. See Red Hat Inc. v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Complainant maintains that the Respondent is not commonly known by the Domain Name, is not using it to offer bona fide goods and services and is not making a legitimate non-commercial or fair use of the name. The Respondent has not responded.
The web site attached to the Domain Name uses the trading name 'Lumena Lending'. The Respondent has used the site to promote goods and services in competition with those of the Complainant. It uses a trading name identical to the Complainant's trade mark and does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc. v Benjamin FA 944242 (Nat. Arb. Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
Additionally the Domain NAme appears to be a typo squatted version of the Complainant's Domain Name chosen in the hope that a customer might mistakenly reach Respondent's web site by typing 'www-' rather than 'www.' See Amazon.com, Inc. v JJ Domains, FA 514939 (Nat Arb. Forum Sept 2, 2005)(respondent lacks rights and legitimate interests in the www-amazon.com domain name because the addition of 'www-' constitutes typo squatting).
As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
As held above the Panel believes that the use made by the Respondent of the Domain Name is confusing in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers financial services under a very similar name to the Complainant and uses a Domain Name which is a typo squatted version of the Complainant's Domain Name. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site. (See Asbury Auto Group Inc. v Tex. Int'l Prop Assocs FA 958542 (Nat. Arb Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
The site also appears to contain loan application forms to be filled in by customers and, therefore, is gathering customer information using the Complainant’s mark. See Capital Fin Corp. & Capital One Bank v Howel FA 289304 (Nat. Arb, Forum Aug. 11, 2003) (Holding that as the capitalonebank.biz domain name was confusingly similar to Complainant's mark, it is being used to redirect Internet users to a web site that imitates Complainant's credit application web site and is being used to acquire personal information from Complainant's clients constituting bad faith registration and use. ) See Wells Fargo & Co. v Maniac State FA 608239 (Nat. Arb. Forum Jan 19, 2006)(Finding bad faith registration and use where respondent was using the wellsbankupdate.com domain name in order to fraudulently acquire the personal and financial information of the Complainant's customers.)
Finally, typo squatting itself is evidence of relevant bad faith registration and use. See Vanguard Group Inc. v IQ Mgmt. Corp. FA 328127 (Nat Arb Forum Oct 28, 2004)(By engaging in typo squatting respondent has registered and used the vangard.com domain name in bad faith pursuant to Policy 4(a) (iii)
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <www-lumenalending.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 19, 2015
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