Opportunity Financial, LLC v. Domain Administrator / See PrivacyGuardian.org
Claim Number: FA2101001929998
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Liz Brodzinski of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Domain Administrator / See PrivacyGuardian.org (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploansonline.com>, registered with NameSilo, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 27, 2021; the Forum received payment on January 27, 2021.
On January 28, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <opploansonline.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 January 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 17, 2021 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@opploansonline.com. Also on January 28, 2021, 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 22, 2021, 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 is a financial services company that provides personal short-term installment loans. Complainant has rights in the OPPLOANS mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,042,920, registered Sept. 13, 2016). Respondent’s <opploansonline.com> domain name is identical or confusingly similar to Complainant’s OPPLOANS mark as it merely adds the additional term “online” to Complainant’s mark.
Respondent lacks rights or legitimate interests in the <opploansonline.com> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use the OPPLOANS mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses the disputed domain name to pass off as and compete with Complainant.
Respondent registered and uses the <opploansonline.com> domain name in bad faith. Respondent uses the disputed domain name to pass off as and compete with Complainant. Furthermore, Respondent had actual knowledge of Complainant’s rights to the OPPLOANS mark prior to registering the disputed domain name based on Respondent’s use of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <opploansonline.com> 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”).
Identical and/or Confusingly Similar
Complainant asserts rights in the OPPLOANS mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,042,920, registered Sep. 13, 2016). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per 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).”). The Panel finds that Complainant has demonstrated rights in the OPPLOANS mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <opploansonline.com> is identical or confusingly similar to Complainant’s OPPLOANS mark as it merely adds the additional term “online” to Complainant’s mark. The addition of a top level domain fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶4(a)(i).”). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per 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 <opploansonline.com> domain name as Respondent is not commonly known by the disputed domain name nor has Complainant authorized or licensed to Respondent any rights in the OPPLOANS mark. When a response is lacking, relevant WHOIS information may be used to determine whether a respondent is 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); see also CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the 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 WHOIS information for the disputed domain name lists the registrants as “Domain Administrator/See PrivacyGuardian.org,” and Complainant argues there is no evidence to suggest that Respondent was authorized to use the OPPLOANS mark. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <opploansonline.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain name to pass off as and compete with Complainant. Passing off as and competing with a complainant may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶4(c)(i) and (iii).”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant argues that the disputed domain name resolves to a website that promotes and purports to sell personal loans and cash advances that compete with Complainant’s financial services and trade off of Complainant’s OPPLOANS Mark. The Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant contends Respondent registered and uses the <opploansonline.com> domain name in bad faith as Respondent uses the disputed domain name to pass off as and compete with Complainant. Passing off as and competing with a complainant can evidence bad faith registration and use per Policy ¶¶ 4(b)(iii) and (b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products). Complainant argues the resolving website promotes and purports to sell personal loans and cash advances that compete with Complainant’s financial services and trade off of Complainant’s OPPLOANS Mark. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (b)(iv).
Complainant contends Respondent registered the <opploansonline.com> domain name in bad faith as Respondent had actual knowledge of Complainant’s rights to the OPPLOANS mark prior to registering the disputed domain name based on Respondent’s use of Complainant’s mark. Use of a mark to divert Internet traffic to a disputed domain name can demonstrate actual knowledge of a complainant’s rights in a mark at registration and show bad faith per Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant argues that Respondent’s use of Complainant’s mark in the disputed domain name and on the resolving website showcases Respondent’s actual knowledge of Complainant’s rights to the OPPLOANS mark. The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark and registered and uses the the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
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 <opploansonline.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
March 3, 2021
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