Funding Circle Limited v. james dunlap / oakwood
Claim Number: FA2304002038824
Complainant is Funding Circle Limited (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is james dunlap / oakwood (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loans-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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on April 4, 2023; Forum received payment on April 4, 2023.
On April 5, 2023, Tucows Domains Inc. confirmed by e-mail to Forum that the <loans-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 April 5, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 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@loans-fundingcircle.com. Also on April 5, 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 April 28, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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
Complainant states that it is a well-known, well-respected company that uses its well-known FUNDING CIRCLE brand to provide a lending marketplace through which investors are able to lend money to small and medium sized businesses. Specifically, over at least the last decade, Complainant has raised funds from more than 92,000 investors, including some of the largest and most sophisticated investors around the world. Complainant then takes those funds and invests them in established, creditworthy businesses in different sectors and regions. By providing these services, Complainant gives its investors diverse investment opportunities and attractive returns while also offering small businesses fast, easy access to financing through business loans to grow their business. 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. In fact, Complainant and its FUNDING CIRCLE brand 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. Complainant has rights in the FUNDING CIRCLE mark through its registration of the mark in the United States in 2018.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its FUNDING CIRCLE mark as it incorporates the mark in its entirety, merely adding the generic term “loans”, a hyphen, and the “.com” generic top-level-domain name ("gTLD"). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use its FUNDING CIRCLE mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate non commercial or fair use. Instead, the disputed domain name resolves to an inactive website and Respondent used the disputed domain name to create a fake email account used to phish for financial information. Specifically, Respondent used the disputed domain name to send at least two fraudulent emails to one of Complainant’s actual customers, impersonating Complainant (the fraudulent emails displayed Complainant’s mark and distinctive logo) and encouraging the customer to review, complete, and sign an allegedly prequalified loan application, as well as encouraging the customer to attach 6-months’ worth of business bank statements and confidential personal banking information to be received by Respondent, rather than Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is using the disputed domain name to create a fraudulent email used to phish for financial information. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights to the FUNDING CIRCLE mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark FUNDING CIRCLE and uses it to provide a lending marketplace for small and medium sized businesses.
Complainant’s rights in its mark date back to 2018.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used in furtherance of a fraudulent email phishing scheme. The fraudulent emails display Complainant’s mark and distinctive logo.
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”).
The disputed domain name incorporates Complainant’s FUNDING CIRCLE mark in its entirety, merely adding the generic term “loans”, a hyphen, and the “.com” generic top-level-domain name ("gTLD"). The addition of a generic or descriptive term, a hyphen, and a gTLD fails sufficiently to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its FUNDING CIRCLE mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Here, the WHOIS information for the disputed domain name lists the registrant as “james dunlap / oakwood”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant provides evidence showing that Respondent used the disputed domain name to create a fake email account used to phish for financial information. Specifically, Respondent used the disputed domain name to send at least two fraudulent emails to one of Complainant’s actual customers, impersonating Complainant (the fraudulent emails displayed Complainant’s mark and distinctive logo) and encouraging the customer to review, complete, and sign an allegedly prequalified loan application, as well as encouraging the customer to attach 6-months’ worth of business bank statements and confidential personal banking information to be received by Respondent, rather than Complainant. Using a disputed domain name to pass off as a complainant for the purpose of phishing for financial information 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 Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name). The Panel therefore finds, on this ground also, that Respondent fails to use the disputed domain name 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 the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) 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 used the disputed domain name to pass off as Complainant and send fraudulent phishing emails. This can evince bad faith registration and use under the Policy. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Victoria’s Secret Stores Brand Mgm’t, Inc. v. Private Whois victoriasecret-use.com, FA1415313 (Forum Dec. 20, 2011) (finding bad faith under Policy ¶ 4(b)(iv) where a domain was used to send “fraudulent emails, posing as a Human Resources Manager for Victoria’s Secret and advertising purported job offers with Victoria’s Secret by directing recipients to the hiring site”). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith in the sense of the Policy.
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the fraudulent emails display Complainant’s mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <loans-fundingcircle.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 28, 2023
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