Funding Circle Limited v. Jeremy Snyder / usa-fundingcircle
Claim Number: FA2302002031099
Complainant is Funding Circle Limited (“Complainant”), UK, represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is Jeremy Snyder / usa-fundingcircle (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <usa-fundingcircle.com>, registered with Tucows Domains Inc..
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 Forum electronically on February 8, 2023; Forum received payment on February 8, 2023.
On February 9, 2023, Tucows Domains Inc. confirmed by e-mail to Forum that the <usa-fundingcircle.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 1, 2023 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@usa-fundingcircle.com. Also on February 9, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On March 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
i) Complainant, Funding Circle Limited, offers investment and loaning services. Complainant has rights in the FUNDING CIRCLE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,521,796, registered July 24, 2018). The disputed domain name is confusingly similar to Complainant’s FUNDING CIRCLE mark because the disputed domain name is virtually identical to Complainant’s mark with the only difference being the addition of “usa-“ and the generic top-level domain (gTLD) “.com”.
ii) Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent is not using the disputed domain name in connection with any bona fide offering of goods and services or for any legitimate or fair use. Respondent is using the disputed domain name in furtherance of criminal activities. The domain does not resolve to an active webpage.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent is engaging in fraudulent behavior. Respondent fails to host an active webpage. Additionally, Respondent had actual knowledge of Complainant’s rights in the FUNDING CIRCLE mark prior to registration of the disputed domain name.
B. Respondent
Respondent did not submit a Response.
1. The disputed domain name was registered on May 27, 2022.
2. Complainant has established rights in the FUNDING CIRCLE mark based upon registration with the USPTO (e.g., Reg. No. 5,521,796, registered July 24, 2018).
3. Respondent has used the disputed domain name to create fake email accounts, pretending to be Complainant’s employees, with the goal of convincing customers to wire payments to Respondent.
4. The disputed domain name does not resolve to an active webpage, and instead it resolves to a webpage that contains a security alert that the domain may be trying to steal information.
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 asserts rights in the FUNDING CIRCLE mark (e.g., Reg. No. 5,521,796, registered July 24, 2018) based upon registration with the USPTO. Registration with the USPTO is sufficient to demonstrate rights in a mark per Policy 4(a)(i). Since Complainant provides evidence of the trademark registration, the Panel finds that Complainant has established rights in the FUNDING CIRCLE mark per Policy ¶ 4(a)(i).
Complainant asserts the disputed domain name <usa-fundingcircle.com> is confusingly similar to Complainant’s FUNDING CIRCLE mark because the disputed domain name is virtually identical to Complainant’s mark with the only difference being the addition of “usa-“ and the “.com” gTLD. The addition of a geographic term, a hyphen, and a gTLD may not defeat an argument of confusing similarity per 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 Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark); David Duchovny v. Alberta Hot Rods c/o Jeff Burgar, FA 1734414 (Forum July 4, 2017) (“Respondent arrives at the disputed domain name by simply taking Complainant’s mark in its entirety and adding the g TLD “.com”. This is insufficient to distinguish the disputed domain name from Complainant’s common law trademark.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per 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 contends that Complainant has never granted Respondent any license or other rights to use the FUNDING CIRCLE mark in commerce for any purpose. Respondent is not commonly known by the disputed domain name. The Panel notes that nothing in the records suggests that Respondent is commonly known by the disputed domain name. The Panel therefore finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for any legitimate or fair use. Respondent has used the disputed domain name to create fake email accounts, pretending to be Complainant’s employees, with the goal of convincing customers to wire payments to Respondent. Use of a domain name in furtherance of criminal activities is not a bona fide offering of goods and services or a legitimate or fair use per Policy ¶ 4(c)(i) and (iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Complainant provides screenshot evidence of the fake email accounts. The Panel therefore finds Respondent failed to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate or fair use per Policy ¶ 4(c)(i) and (iii).
Complainant asserts Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for any legitimate or fair use because the domain name does not resolve to an active webpage, and instead it resolves to a webpage that contains a security alert that the domain may be trying to steal information. Failure to resolve to an active webpage is not a bona fide offering of goods and services or a legitimate or fair use per Policy ¶ 4(c)(i) and (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”). Complainant provides a screenshot of the disputed domain name’s resolving website. Accordingly, the Panel finds Respondent failed to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate or fair use per Policy ¶ 4(c)(i) and (iii).
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 name.
Complainant asserts Respondent registered and uses the disputed domain name in bad faith. Respondent has engaged in at least two fraudulent email conversations with two of Complainant’s customers in an effort to defraud those customers. Sending fraudulent emails is evidence of bad faith under Policy ¶ 4(b)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)). Here, Complainant provides screenshot evidence of the fake email accounts. Thus, the Panel finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Complainant argues Respondent registered and uses the disputed domain name in bad faith because Respondent is not hosting an active webpage. The Panel agrees that the passive holding of a domain name does not necessarily circumvent a finding that the domain name is being used in bad faith within the requirements of paragraph 4(a)(iii) of the Policy. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (finding that in considering whether the passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the panel must give close attention to all the circumstances of the respondent’s behavior, and a remedy can be obtained under the Policy only if those circumstances show that the respondent’s passive holding amounts to acting in bad faith.)
The particular circumstances of this case that the Panel has considered are:
i) Complainant is a well-known company that uses its well-known FUNDING CIRCLE mark to provide a lending marketplace through which investors are able to lend money to small and medium sized businesses. This unique business model has made Complainant one of the best-capitalized lending platforms in the world, with Complainant having originated more than $10.7 billion in loans to more than 81,000 businesses across the globe. Complainant and its FUNDING CIRCLE mark have been widely recognized for its valuable services, as evidenced by it being named the “Best Small Business Loan for low APR” by U.S. News & World Report in April 2019, and winning first place in the category of “Business Lending” in the Center for Financial Professionals FinTech Leaders 2020 Report;
ii) Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain names; and
iii) Respondent has used the disputed domain name to create fake email accounts, pretending to be Complainant’s employees, with the goal of convincing customers to wire payments to Respondent.
Taking into account all of the above, the Panel concludes that Respondent’s passive holding of the disputed domain name constitutes bad faith under Policy, paragraph 4(a)(iii) and that Respondent is using the disputed domain name in bad faith.
Complainant further contends that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the FUNDING CIRCLE mark based on Respondent’s use of the domain name to create fraudulent email accounts that Respondent used in an attempt to induce Complainant’s customers to transfer money to Respondent. Complainant further asserts it first used the FUNDING CIRCLE mark over a decade ago, well before Respondent registered the disputed domain name on May 27, 2022. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had actual knowledge of Complainant’s rights in its FUNDING CIRCLE mark at the time of registering the disputed domain name, which constitutes bad faith registration 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 <usa-fundingcircle.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: March 9, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page