DECISION

 

ConsumerDirect, Inc. v. SMARTCREDIT up

Claim Number: FA2404002093940

PARTIES

Complainant is ConsumerDirect, Inc. ("Complainant"), represented by Meredith Williams of Rutan & Tucker LLP, California, USA. Respondent is SMARTCREDIT up ("Respondent"), Australia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <smartcreditup.com>, registered with Key-Systems GmbH.

 

PANEL

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.

 

Alan L. Limbury, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 18, 2024. Forum received payment on April 18, 2024.

 

On April 22, 2024, Key-Systems GmbH confirmed by e-mail to Forum that the <smartcreditup.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 23, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2024 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@smartcreditup.com. Also on April 23, 2024, 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 May 14, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, ConsumerDirect, Inc., is a well-known provider of credit score management services whereby consumers can monitor credit reports, learn how to increase their credit score, manage debt, and monitor fraudulent activity that may affect their credit. Complainant offers its services under its SMARTCREDIT and SMARTCREDIT.COM marks to consumers via its websites, including the website <smartcredit.com>, which it has operated for over a decade.

 

Complainant has rights in the SMARTCREDIT and SMARTCREDIT.COM marks through registrations with the United States Patent and Trademark Office ("USPTO"). Respondent's <smartcreditup.com> domain name is confusingly similar to Complainant's marks.

 

Respondent lacks rights or legitimate interests in the <smartcreditup.com> domain name.  Complainant attempted to contact Respondent using the only contact information on its website and received no response, so presumably any consumer that reaches out to Respondent with any question or website issue would also not receive a response. As far as Complainant is aware, Respondent has not made any bona fide offering of goods and services under Policy ¶ 4(c)(i).

 

Although Respondent's website mimics many of the features of Complainant's website, Respondent is not an authorized provider of Complainant's services. Complainant has never licensed or otherwise permitted Respondent to use any of its trademarks and, in particular, its SMARTCREDIT and SMARTCREDIT.COM marks.

 

Respondent's Whois information gives no indication that Respondent is known by SMARTCREDIT or any similar names.

 

Respondent is not making use of the domain name for a legitimate bona fide offering of goods or services, nor for a legitimate noncommercial fair use. Instead, Respondent is using Complainant's mark to pass itself off as Complainant (and owner of the SmartCredit® mark), or at least as a legitimate credit-related business, when it is not. Respondent profits from this confusion through inducing consumers to provide not just their personal information to register, but also payment, banking, and/or other financial information.

 

Respondent registered the <smartcreditup.com> domain name in bad faith with actual knowledge of Complainant's rights in the SMARTCREDIT and SMARTCREDIT.COM marks and uses it in bad faith to create a false impression of affiliation with Complainant in order to compete with and disrupt Complainant's business by diverting potential customers to its scam website to extract personal and financial information from Internet users.

 

Moreover, Respondent provided only "First name – smart" and "Last name – credit up" to the Registrar to avoid providing any actual registrant name. Respondent also provided conflicting and apparently inaccurate contact information for both a building in Australia (per the Registrar) and an undisclosed location in "Richmond, Alexandria, VA 22301 United States" (per the website).

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has established all the elements entitling it to relief.

 

DISCUSSION

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 the domain name should be cancelled or transferred:

 

(i)                      the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii)                      Respondent has no rights or legitimate interests in respect of the domain name; and

(iii)                      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 as 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 has shown that it has rights in the SMARTCREDIT and SMARTCREDIT.COM marks through registrations with the USPTO (SMARTCREDIT, Reg. No. 6,068,903, registered on June 2, 2020 and SMARTCREDIT.COM, Reg. No. 3,819,295, registered on July 13, 2010). The Panel finds Respondent's <smartcreditup.com> domain name to be confusingly similar to Complainant's marks, only differing by the addition of the word "up", which does nothing to distinguish the domain name from the marks. The inconsequential ".com" generic top-level domain ("gTLD") is usually ignored (see, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429) but in this case it reinforces the similarity of the domain name to Complainant's SMARTCREDIT.COM mark.

 

Complainant has established this element.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

 

(i)         before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

 

(ii)         Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or

 

(iii)         Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

 

The <smartcreditup.com> domain name was registered on February 6, 2023, several years after Complainant registered its SMARTCREDIT and SMARTCREDIT.COM marks. It resolves to a website offering the same services as Complainant from an address in the United States; promotes itself as "Smart Credit Up": and displays the mark "SmartCredit®". The website also seeks personal information to enable users to set up an account with their financial information.

 

These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <smartcreditup.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.

 

The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.

 

Complainant has established this element.

 

Registration and Use in Bad Faith

Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:

(iv)        by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.

The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's SMARTCREDIT and SMARTCREDIT.COM marks when Respondent registered the <smartcreditup.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website, by creating a likelihood of confusion with Complainant's mark as to the source of Respondent's website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).

 

Further, that Respondent registered the domain name in bad faith with false Whois information and is using it in bad faith by masquerading as Complainant for the purpose of phishing for personal and financial information.

 

Complainant has established this element.

 

DECISION

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 <smartcreditup.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Alan L. Limbury, Panelist

Dated: May 15, 2024