Complainant is Prosper Funding, LLC of San Francisco, California, United States of America, represented by Osha Liang LLP, United States of America.
Respondent is Whoisguard Protected, Whoisguard, Inc. of Panama / Todd Gillum of Memphis, Tennessee, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with eNom, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 26, 2016. On February 29, 2016, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an e-mail communication to Complainant on March 1, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 7, 2016.
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 Respondent of the Complaint, and the proceeding commenced on March 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 31, 2016. Respondent sent an e-mail to the Center on March 11, 2016. Respondent did not however submit any formal response. Accordingly, the Center notified the parties about the commencement of panel appointment process on April 1, 2016.
The Center appointed Robert A. Badgley as the sole panelist in this matter on April 15, 2016. 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
Complainant describes itself as "America's first peer-to-peer lending marketplace." According to the Complaint, Complainant has more than two million members and USD four billion in funded loans. Complainant was founded in 2006 and has used the mark PROSPER since then to identify and distinguish its peer-to-peer lending services and related services. Complainant holds several registrations of the mark PROSPER with the United States Patent and Trademark Office. These registrations claim a first use in commerce of February 5, 2006. Since 2006, Complainant has operated a website, where most of its business is conducted, at the address "."
Respondent registered the Domain Name on February 11, 2006. According to a declaration submitted by Complainant's counsel, as of January 27, 2016 the Domain Name was automatically redirected to another website owned by Respondent, at the address "." That website offers "peer to peer credit," described further as "personal loan access to borrowers and access to consumer loans for investors."
As noted above, Respondent did not submit a formal response to the Complaint. Respondent did, however, send the Center an e-mail in which he stated that he has no objection to a panel order transferring the Domain Name to Complainant. Respondent wished to emphasize, though, that he registered the Domain Name in 2006 with the knowledge and "implicit and explicit" consent of Complainant's management at the time. According to Respondent, the Domain Name was used to host "my personal Prosper-related blog from 2006 which chronicled my experiences as a lender ('investor') on the platform."
Respondent added in his e-mail that the blog site to which the Domain Name resolved "was even linked to/from [Complainant's] official website (P) and Prosper's official blog (blog.p)." Respondent "fully reject[ed] both the claim of 'bad faith' and the claim of 'lack of permission.'" Respondent did not make these statements in an affidavit or other sworn statement, and did not submit any documentary evidence that Complainant's management knew of and/or consented to Respondent's registration and use of the Domain Name.
Finally, Respondent stated: "I have no use for the domain and have not hosted a website on the domain for many, many years". 5. Parties' Contentions A. Complainant
Complainant contends that it has satisfied all three elements required under the Policy for a transfer of the Domain Name. Complainant stresses that Respondent has been redirecting the Domain Name to Respondent's website, where peer-to-peer lending services are offered in direct competition with Complainant's business. B. Respondent
Respondent did not formally reply to Complainant's contentions, but in an e-mail asserted that he registered and used the Domain Name for a blog site with the knowledge and approval of Complainant's prior management. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name 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. A. Identical or Confusingly Similar
Complainant clearly has rights, through registration and use, in the mark PROSPER. The Domain Name entirely incorporates the mark, and adds the descriptive word "loan." Because Complainant offers lending opportunities through its PROSPER mark, the additional word "loan" does nothing to reduce the confusing similarity between the mark and the Domain Name.
Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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.
Respondent's explanation for registering and using the Domain Name back in 2006 and 2007 – to host a blog chronicling his experience as an investor with Complainant – is not implausible on its face. Moreover, it would not be the first time that a trademark owner in Complainant's position went along with, or even encouraged, a blogger in Respondent's position, only to change its mind a few years later.
Respondent's explanation was not, however, submitted in the form of a sworn statement, made under penalty of perjury. In a proceeding under the Policy, which is streamlined and decided on a balance of probabilities based on the record before the Panel, the difference between a sworn statement and a bare assertion in an e-mail can sometimes matter.
Of greater concern to the Panel, however, is Respondent's complete failure to respond to the allegation – made by Complainant's counsel in a sworn statement and accompanied by screenshot evidence – that the Domain Name was recently redirected to a website operated by Respondent which offered lending services in direct competition with Complainant. The failure to rebut this critical allegation undermines Respondent's credibility across the board, and thus renders it difficult for the Panel to accept as true Respondent's unsworn and uncorroborated statement that Complainant had been aware of Respondent's registration and use of the Domain Name back in 2006 and 2007.
Based on the record before the Panel, and guided by the observations concerning credibility noted above, the Panel finds it more likely than not that Respondent did not in fact operate a blog with the knowledge and approval of Complainant in 2006 and 2007. Further, the Panel discerns no other basis for finding that Respondent has rights or legitimate interests in respect of the Domain Name.
Complainant has established Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, "in particular but without limitation," are evidence of the registration and use of the Domain Name in "bad faith":
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's 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 Respondent's website or location.
Respondent does not dispute that he was aware of Complainant's PROSPER mark at the time he registered the Domain Name. It is also undisputed that, as recently as January 2016, the Domain Name resolved to another website operated by Respondent which offered peer-to-peer lending services in direct competition with Complainant.
On this record, the Panel finds that Respondent registered and used the Domain Name in bad faith within the meaning of the above-quoted paragraphs 4(b)(iii) and 4(b)(iv).
Complainant has established Policy, paragraph 4(a)(iii). 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 Domain Name be transferred to Complainant.
Robert A. Badgley
Sole Panelist
Date: April 15, 2016
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