The Complainant is Prosper Funding LLC of San Francisco, California, United States of America ("United States"), represented by Osha Liang LLP, United States.
The Respondent is Whoisguard Protected, Whoisguard, Inc. of Panama / Isaac Challa, Valerymedia of Stevenage, Herts, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"). 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 5, 2015. On October 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 6, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 7, 2015, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on October 15, 2015.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 16, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 5, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 6, 2015.
The Center appointed James Bridgeman as the sole panelist in this matter on November 12, 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 has furnished copies of certificates of registration by its parent corporation of the following service marks:
- United States Service Mark PROSPER, registration number 3,277,812 registered on August 7, 2007 in international class 38 for "telecommunications services, namely electronic transmission of data and messages online interactive bulletin board and chat room for transmission of messages among users concerning financial matters in class 38 (U.S. CLS. 100, 101 AND 104)";
- United States Service Mark PROSPER, registration number 3,374,113 registered on January 22, 2008 in international class 35 for "Online website services related to matching borrowers with potential lenders in the field of consumer lending in an auction-type environment via a global computer network in class 35 (U.S. CLS. 100, 101 and 102)";
- United States Service Mark PROSPER in combination with a star and globe design, registration number 3,274,817 registered on August 7, 2007;
- United States Service Mark PROSPER in combination with a star on globe design, registration number 3,253,371 registered on June 19, 2007 for services in international class 38;
- United States Service Mark star on globe design registration number 3,253,372 registered on June 19, 2007 for services in international class 36; and
- United States Service Mark star on globe design, registration number 3,260,540, registered on July 10, 2007 for services in International Class 38.
The Complainant has also filed two applications with the United States Patent and Trade Marks Office to register the mark PROSPER.COM for services in International Classes 35 and 38 which are still pending.
The disputed domain name was registered on June 4, 2015. 5. Parties' Contentions A. Complainant
The Complainant submits that it is a wholly owned subsidiary of Prosper Marketplace Inc., and claims ownership of the above-listed United States Service Marks.
The Complainant submits that it has been providing consumer loan services on its website to which its domain name resolves since at least as early as 2006.
It has recently come to the attention of the Complainant that the Respondent is using the Complainant's PROSPER mark without authorization or permission on a website to which the disputed domain name resolves to offer loans to consumers. The Complainant has annexed a copy of the home page of the Respondent's website to the Complaint.
The Complainant alleges that the disputed domain name is confusingly similar to the Complainant's PROSPER mark.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name, asserting that the Respondent is not in any way related to the Complainant and that the Complainant has not granted permission to the Respondent to use the disputed domain name or the Complainant's PROSPER trademark.
The Complainant asserts that the Respondent is not commonly known by the disputed domain name and further asserts that the Respondent is not making any fair use of the disputed domain name, alleging that the Respondent is using the disputed domain name to divert consumers away from the Complainant's website.
The Complainant alleges that the disputed domain name was registered and is being used in bad faith because the Respondent is using the disputed domain name to intentionally attract, Internet users to the website to which the disputed domain name resolves, for commercial gain by creating a likelihood of confusion with the Complainant's PROSPER mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's services.
The Complainant points out that the disputed domain name was registered long after the Complainant established its online business and submits that the Respondent's action in registering the disputed domain name and the manner in which it is being used to direct Internet traffic to its website offering loans, is evidence of a clear intention to disrupt the Complainant's business, to deceive consumers, and trade off the Complainant's goodwill by creating an unauthorized association between the Respondent's activities and the Complainant's PROSPER mark. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to establish that:
(i) the disputed domain name 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 in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
This Panel accepts that the Complainant has rights in the PROSPER mark. The Panel notes that the above United States registrations are in fact registered in the name of the Complainant's parent company, nevertheless the Panel is satisfied that the Complainant has rights in the mark through its relationship with the registered owner and its permitted use of the PROSPER mark in the provision of its online financial services since 2006.
This Panel finds that the disputed domain name is confusingly similar to the Complainant's PROSPER trademark. The disputed domain name consists of the Complainant's mark without modification and in its entirety in combination with the two English language words "loans" and "apply" and the generic Top-Level Domain ("gTLD") ".com" extension. The additional words in the disputed domain name are descriptive of the Parties' activities in arranging for the provision of loans to consumers and therefore do not serve to distinguish the disputed domain name from the Complainant's PROSPER mark. In circumstances of the present Complaint the gTLD ".com" extension may be ignored for the purposes of the comparison under the Policy.
The Complainant has therefore satisfied the first element in the test set out in paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
This Panel is satisfied that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The disputed domain name is confusingly similar to the Complainant's mark and is descriptive of the Complainant's business activities; the Complainant has not granted the Respondent any right or license to use its mark; the disputed domain name was not registered until June 4, 2015, at which time the Respondent had been actively using the PROSPER mark in relation to its online business for approximately nine years.
In such circumstances the burden of production of evidence shifts to the Respondent and the Respondent has failed to file a Response or make any submissions in response to this Complaint.
In the circumstances this Panel finds that the Respondent has failed to discharge the burden of evidence required to rebut the presumption established by the Complainant's prima facie case and the Complainant has therefore satisfied the second element in the test set out in paragraph 4(a)(ii) of the Policy also. C. Registered and Used in Bad Faith
The disputed domain name consists of the Complainant's PROSPER mark in combination with two descriptive elements which are descriptive of the Complainant's online business. The Complainant's business had been established for nine years prior to the registration of the disputed domain name.
A comparison of the home page of the Complainant's website at "www." and the Respondent's website to which the disputed domain name resolves shows sufficient similarities to allow this Panel to conclude on the balance of probabilities that the Respondent was aware of the Complainant's business and online presence when the disputed domain name was registered.
Furthermore the evidence on file, which has not been refuted, is sufficient to prove on the balance of probabilities, that the Respondent's use of the disputed domain name is calculated to target Internet traffic intended for the Complainant.
For example, the Respondent has posted a photograph of two people in a motorcar with left-hand-drive as the most prominent graphic element on the home-page of its website. This photograph is identical to the photograph which is the most prominent element on the home page of the Complainant's website. The Respondent purports to be based in England where automobiles are right-hand-driven.
Additionally the prominent caption on the photograph on the Complainant's website states "$4 Billion Borrowed 250,000 People empowered" and there is an almost identical the caption on the Respondent's webpage stating "$ 3 Billion Borrowed 250,000 People empowered".
Taken together these and other elements on the Respondent's website such as the general appearance and color scheme allow this Panel to find that, on the balance of probabilities, the Respondent is intentionally seeking to create the impression that there is an association between the disputed domain name and the Complainant.
Having considered the submissions and evidence adduced by the Complainant and the file in this Complaint, this Panel is satisfied on the balance of probabilities that the disputed domain name was registered and is being used in bad faith because the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's PROSPER mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website.
The Complainant has therefore also satisfied the third and final element in the test set out in paragraph 4(a)(iii) of the Policy and is entitled to succeed in this Complaint. 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 name be transferred to the Complainant.
James Bridgeman
Sole Panelist
Date: November 13, 2015
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