The Complainant is Avant Credit Corporation of Chicago, Illinois, United States of America, represented by McDonald Hopkins LLC, United States of America.
The Respondent is Andy Tang of Deerfield Beach, Florida, United States of America. 2. The Domain Names and Registrars
The disputed domain names and are registered with Wild West Domains, LLC. The disputed domain names and are registered with R Corp. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 11, 2014. On December 12, 2014, the Center transmitted by email to the concerned registrars a request for registrar verification in connection with the disputed domain names. On December 13, 2014, Wild West Domains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On January 15, 2015 R Corp. LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant submitted an amendment to the Complainant on January 19, 2015.1
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 21, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was February 10, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 11, 2015.
The Center appointed William R. Towns as the sole panelist in this matter on February 19, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a provider of online consumer lending services. In connection with these services, the Complainant has registered and uses the mark AVANT CREDIT. The United States Patent and Trademark Office (USPTO) issued a registration for the AVANT CREDIT mark on December 17, 2013, stemming from an application filed by the Complainant on February 14, 2013. The Complainant has used AVANT CREDIT in commerce since as early as January 2013. The Complainant registered the domain name on October 28, 2012, and has operated a website at “www.” since January 2013.
The Respondent registered the disputed domain names on various dates between October 8, 2013 and July 2, 2014. The record reflects that all of the disputed domain names have been used at various times following their registrations with websites advertising consumer lending services and pay day loans. The disputed domain names and currently resolve to virtually identical websites offering services competing with those of the Complainant. The disputed domain names and at present do not resolve to active websites. 5. Parties’ Contentions A. Complainant
The Complainant describes itself as a leader in the online consumer lending industry. According to the Complainant since its launch in January 2013 it has funded more than USD 500 million in personal loans to some 100,000 customers, and has over 500 employees. The Complainant avers that it’s AVANT CREDIT branded consumer lending services have been featured in numerous nationwide financial and special interest publications including The Wall Street Journal, Bloomberg, Crane’s Chicago Business, and Fast Company.
The Complainant asserts both registered and common law rights in AVANT CREDIT. The Complainant maintains that the disputed domain names are confusingly similar to the Complainant’s AVANT CREDIT mark, as each of the disputed domain names incorporates the Complainant’s mark in its entirety. The Complainant explains that the inclusion of corporate designations such as “inc”, dictionary words such as “review” or “reviews”, and descriptive terms such as “247” (connoting “24 hours a day, 7 days a week”) do not serve to distinguish the disputed domain names from the Complainant’s mark.
The Complainant asserts that the Respondent does not have rights or legitimate interests in the disputed domain names. The Complainant submits that the Respondent has not been commonly known by the disputed domain names and has not been authorized to use the Complainant’s mark. According to the Complainant, the Respondent has not used or made demonstrable preparations to use the disputed domain names in connection with a bona fide offering of goods or services. To the contrary, the Complainant argues that the Respondent registered and is using the disputed domain names, which are confusingly similar to the Complainant’s AVANT CREDIT mark, to create Internet user confusion and divert Internet traffic to the Respondent’s websites. The Complainant submits that such use constitutes neither use in connection with a bona fide offering of goods or services, nor a legitimate noncommercial or other fair use of the disputed domain names.
The Complainant maintains that the Respondent registered and is using the disputed domain names in bad faith. The Complainant argues that the Respondent intentionally registered and is using the disputed domain names for purposes of commercial gain to divert Internet users to the Respondent’s websites by creating confusion as to the Complainant’s affiliation, sponsorship, or endorsement of the Respondent’s websites or the consumer lending services offered thereon. The Complainant further asserts that the Respondent has engaged in a bad faith pattern of registering domain names corresponding to well-known third-party marks. According to the Complainant, the Respondent previously registered and used the domain name in an attempt to pass himself off as Capital One Financial Corp. The Complainant cites the UDRP panel decision in Capital One Financial Corp. v. Andy Tang, NAF Claim No. 1562673. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Scope of the Policy
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. See Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store,WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. See Weber-Stephen Products Co. v. Armitage Hardware,WIPO Case No. D2000-0187. See also Final Report of the WIPO Internet Domain Name Process, April 30, 1999, paragraphs 169 and 170.
Paragraph 15(a) of the Rules provides that the Panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.
Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:
(i) The domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) The respondent has no rights or legitimate interests with respect to the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Cancellation or transfer of a domain name are the sole remedies provided to the complainant under the Policy, as set forth in paragraph 4(i).
Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a disputed domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270. B. Identical or Confusingly Similar
The Panel finds for purposes of paragraph 4(a)(i) of the Policy that the disputed domain names are confusingly similar to the Complainant’s AVANT CREDIT mark, with respect to which the Complainant has demonstrated rights. In considering the question of identity or confusing similarity, the first element of the Policy operates essentially as a standing requirement.2 The threshold inquiry under the first element of the Policy is framed in terms of whether the trademark and the disputed domain name, when directly compared, are identical or confusingly similar.
The disputed domain names incorporate the Complainant’s AVANT CREDIT mark in its entirety and as such are confusingly similar to the Complainant’s mark for purposes of paragraph 4(a)(i) of the Policy. The addition of corporate designations such as “inc”, dictionary words such as “review” or “reviews”, and descriptive terms such as “247” (i.e., “24 hours a day, 7 days a week”) does not serve to distinguish the disputed domain names from the Complainant’s mark. Although the generic Top-Level Domain (“gTLD”) may in appropriate circumstances be considered when evaluating identity or confusing similarity, gTLDs may also be disregarded, and usually are not taken into consideration when evaluating the identity or confusing similarity between the complainant’s mark and the disputed domain name. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000‑1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429; Phenomedia AG v. Meta Verzeichnis Com,WIPO Case No. D2001-0374.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in a disputed domain name. The Panel finds that the Complainant has made a prima facie showing. It is undisputed that the Respondent has not been commonly known by the disputed domain names. The Respondent, without the Complainant’s authorization or consent, has registered multiple domains names that incorporate and are confusingly similar to the Complainant’s AVANT CREDIT mark. The Respondent has used the disputed domain names with websites advertising or offering consumer lending services competitive with such services offered by the Complainant under its AVANT CREDIT mark.
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s use 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) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent has not submitted a response to the Complaint, in the absence of which the Panel may accept all reasonable inferences and allegations in the Complaint as true. See Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009. Regardless, the Panel has carefully reviewed the record in this case, and finds nothing therein that would bring the Respondent’s registration and use of the disputed domain names within any of the “safe harbors” of paragraph 4(c) of the Policy.
Based on the record in this proceeding, the Panel considers it highly likely that the Respondent was aware of the Complainant and the Complainant’s AVANT CREDIT mark when registering the disputed domain names. In the absence of any reply by the Respondent, the Panel concludes that the Respondent registered the disputed domain names in order to trade on the goodwill and reputation of the Complainant’s marks through the creation of Internet user confusion. Internet users could easily expect that the disputed domain names would be linked to the Complainant’s website or another website that is affiliated with, or has the endorsement or sponsorship of, the Complainant. See Levantur, S.A. v. Media Insight,WIPO Case No. D2008‑0774.
The record before the Panel does not reflect the Respondent’s use of, or demonstrable preparations to use, the disputed domain names in connection with a bona fide offering of goods or services. Nor, in the circumstances of this case, does the Panel consider that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names without intent for commercial gain to misleadingly divert consumers. As noted above, the Respondent has not been authorized to use the Complainant’s marks, and the Panel finds that the Respondent has not been commonly known by the disputed domain names within the meaning of paragraph 4(c)(ii) of the Policy. In sum, and absent any reply by the Respondent, there is nothing in the record before the Panel to support a claim by the Respondent of rights or legitimate interests in the disputed domain names.
Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. M, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004‑0230.
For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain names within the meaning of paragraph 4(a)(iii) of the Policy. While the Panel notes that the USPTO’s registration of the Complainant’s AVANT CREDIT mark post-dates the registrations of two of the disputed domain names – on October 8, 2013, and on December 3, 2013 – the Complainant’s application to register its AVANT CREDIT mark, filed with the USTPO on February 14, 2013, was a matter of public record. Further, the record reflects the Complainant’s use in commerce of the AVANT CREDIT mark with the Complainant’s launch of its “www.” website in January 2013. Accordingly, and absent any reply by the Respondent, the Panel concludes that the Respondent was aware of the Complainant and the Complainant’s rights when registering the disputed domain names, each of which appropriate the Complainant’s mark in its entirety.
Further, in the absence of any reply by the Respondent, the Panel considers that the Respondent’s primary motive in relation to the registration and use of the disputed domain names was to capitalize on, or otherwise take advantage of, the Complainant’s trademark rights through the creation of Internet user confusion. As the Panel has earlier noted in section 4 of this decision, the disputed domain names appropriate the Complainant’s AVANT CREDIT mark and have been used by the Respondent to divert Internet users to websites offering services competing with those offered by the Complainant. In light of the foregoing, the record reflects that the Respondent has registered and is using the disputed domain names in bad faith. That the Respondent may be passively holding several of the disputed domain names at this time does not preclude a finding of bad faith registration and use in the circumstances of this case. See Telstra Corporation Limited v. Nuclear Marshmallows, supra.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names , , and be transferred to the Complainant.
William R. Towns
Sole Panelist
Date: March 2, 2015
1 Before the Complaint was filed, the current Respondent was notified by the Complainant of its rights in the AVANT CREDIT mark, and demand was made that the Respondent cease the infringing use of the disputed domain name . The Complainant received no reply, but the WhoIs registrant for this disputed domain name subsequently was changed to Privacy Hero, Inc., a privacy protection service. As originally filed the Complaint named Privacy Hero, Inc. as a Respondent in addition to the current Respondent, the WhoIs registrant of the other three disputed domain names. Thereafter, the concerned registrar disclosed that the current Respondent is also the WhoIs registrant for , following which the Complainant chose to proceed solely against the current Respondent.
2 See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (hereinafter “WIPO Overview 2.0”), paragraph 1.2.
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