loanDepot.com, LLC v. MOIRANGTHEM BIRBANTA / Moirangthem Birbanta Singh
Claim Number: FA2001001880527
Complainant is loanDepot.com, LLC (“Complainant”), represented by Hani Sayed of Rutan & Tucker LLP, California. Respondent is MOIRANGTHEM BIRBANTA / Moirangthem Birbanta Singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <theusloandepot.com> and <theonlineloandepot.com>, registered with Network Solutions, Llc, Bigrock Solutions Ltd and BigRock Solutions Ltd.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 24, 2020; the Forum received payment on January 24, 2020.
On January 27, 2020 and January 29, 2020, Network Solutions, Llc, Bigrock Solutions Ltd and BigRock Solutions Ltd confirmed by e-mail to the Forum that the <theusloandepot.com>, <theonlineloandepot.com> domain names are registered with Network Solutions, Llc, Bigrock Solutions Ltd and BigRock Solutions Ltd and that Respondent is the current registrant of the names. Network Solutions, Llc, Bigrock Solutions Ltd and BigRock Solutions Ltd have verified that Respondent is bound by the Network Solutions, Llc, Bigrock Solutions Ltd and BigRock Solutions Ltd 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 January 30, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 19, 2020 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@theusloandepot.com, postmaster@theonlineloandepot.com. Also on January 30, 2020, 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 February 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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 names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant is a nonbank consumer lender offering home mortgage, refinance, equity, and personal loan products. Complainant has rights in the LOANDEPOT mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,804,520, registered June 15, 2010). The disputed domain names are confusingly similar to Complainant’s mark, as Respondent merely adds the geographic term “the US” and “.com” generic top-level domain (“gTLD”) to Complainant’s mark.
ii) Respondent has no rights or legitimate interests in the <theusloandepot.com> and <theonlineloandepot.com> domain names as Respondent is not commonly known by the disputed domain names nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use of the <theusloandepot.com> domain name is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is attempting to pass off as Complainant to forward a fraudulent scam. Additionally, Respondent lack rights and legitimate interest in the <theonlineloandepot.com> domain name, as it currently is held inactive.
iii) Respondent registered and used the <theusloandepot.com> and <theonlineloandepot.com> domain names in bad faith. With the <theusloandepot.com> domain name, Respondent is attempting to disrupt Complainant’s business and attract Internet users for commercial gain to forward a fraudulent scam. Furthermore, the <theonlineloandepot.com> domain name is held inactively.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The <theusloandepot.com> and <theonlineloandepot.com> domain names were registered on October 1, 2019 and September 30, 2019, respectively.
2. Complainant has rights in the LOANDEPOT mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,804,520, registered June 15, 2010).
3. In the <theusloandepot.com> domain name’s resolving website, Respondent is attempting to pass off as Complainant to forward a fraudulent scam.
4. The <theonlineloandepot.com> domain name remains inactive.
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 LOANDEPOT mark through its registration of the mark with the USPTO (e.g., Reg. No. 3,804,520, registered June 15, 2010). Registration with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel finds that the Complainant has rights in the LOANDEPOT mark under Policy ¶ 4(a)(i).
Complainant argues the disputed domain names are confusingly similar to Complainant’s mark, as the <theusloandepot.com> domain name merely adds the geographic term “the US” and “.com” gTLD to Complainant’s mark. Additionally, Complainant argues the <theonlineloandepot.com> domain name is confusingly similar. Although Complainant has not alleged that the <theonlineloandepot.com> domain name adds the term “the online” and “.com” gTLD to Complainant’s mark, the addition of geographic or descriptive terms and a gTLD to a complainant’s mark may not sufficiently distinguish a disputed domain name from an complainant’s mark under Policy ¶ 4(a)(i). See Avaya Inc. v. Evelyn Dayda / Avaya Unlimited Sources LLC, FA 1611255 (Forum May 4, 2015) (finding that as “the ‘usa’ portion of the disputed domain name is a generic geographic term, the internet user will assume that the domain name deals with the activities of Complainant in the USA and that it will lead to a website dealing with that subject. The domain name is therefore confusingly similar to the AVAYA mark and the Panel so finds.”); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Therefore, the Panel finds the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
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”).
Complainant argues that Respondent has no rights or legitimate interests in the <theusloandepot.com> and <theonlineloandepot.com> domain names as Respondent is not commonly known by the disputed domain names nor has Respondent been licensed or authorized by the Complainant to use Complainant’s mark. Where a response is lacking, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent lacks rights or legitimate interest in a disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“Lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The Panel notes the WHOIS of record identifies the Respondent as “MOIRANGTHEM BIRBANTA / Moirangthem Birbanta Singh” and no information in the record indicates that Respondent was authorized to use Complainant’s mark or was commonly known by the disputed domain names. Therefore, the Panel finds that Respondent has no rights or legitimate interests in the <theusloandepot.com> and <theonlineloandepot.com> domain names as Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent fails to use the <theusloandepot.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is attempting to operate a fraudulent gift card scam. Using a disputed domain name to deceive or defraud Internet users may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Complainant provides screenshots of the <theusloandepot.com> domain name’s resolving webpage and contends that the purpose of the website is to scam Internet users out of personal or financial information. See Amend. Compl. Ex. I. Therefore, the Panel finds Respondent fails to use the <theusloandepot.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Furthermore, Complainant argues Respondent lack rights and legitimate interest in the <theonlineloandepot.com> domain name, as the disputed domain name is currently being held inactive. Registration of a disputed domain name for the purpose of holding it in an inactive state may not establish rights and legitimate interest under Policy ¶ 4(a)(ii). See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”). Complainant alleges that the disputed domain name does not resolve to an active website. Therefore, the Panel finds Respondent lack rights and legitimate interest in the <theonlineloandepot.com> domain name under Policy ¶ 4(a)(ii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant argues Respondent registered and used the <theusloandepot.com> domain name in bad faith. Specifically, Respondent is attempting to disrupt Complainant’s business and attract Internet users for commercial gain with a fraudulent scam. Registration and use of a disputed domain name to deceive Internet users with a fraudulent scam for the purpose of disrupting a complainant’s business and to gain commercially may be evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the links on it are connected to or approved by Complainant as they offer competing products under a sign confusingly similar to Complainant’s mark as well as containing links related to Complainant itself. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or products on it likely to disrupt the business of Complainant.”); see also H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness). Complainant provides screenshots of the <theusloandepot.com> domain name’s resolving webpage and contends that the purpose of the website is to scam Internet users out of personal or financial information. Therefore, the Panel finds Respondent registered and used the <theusloandepot.com> domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Finally, Complainant argues Respondent registered and used the <theonlineloandepot.com> domain name in bad faith, as Respondent is merely holding this disputed domain name inactively. Registration of a disputed domain for the purpose of holding in an inactive state may be evidence of bad faith under Policy ¶ 4(a)(iii). See State Farm Mutual Automobile Insurance Company v. Dr. Keenan Cofield, FA 1799574 (FORUM Sep. 10, 2018) (finding bad faith under Policy ¶ 4(a)(iii) where “the domain name initially resolved to a web page with a “website coming soon” message, and now resolves to an error page with no content.”). Complainant alleges that the disputed domain name does not resolve to an active website. Therefore, the Panel finds Respondent registered and used the <theonlineloandepot.com> domain name in 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 <theusloandepot.com> and <theonlineloandepot.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: February 28, 2020
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