Complainant is Opportunity Financial, LLC of Chicago, Illinois, United States of America ("United States"), represented by Powers & Greengard, United States.
Respondent is Andy Tang of Deerfield Beach, Florida, United States. 2. The Domain Name and Registrar
The Disputed Domain Name is registered with N, Inc. (N LLC) (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 27, 2016. On July 27, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 29, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 5, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 25, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on August 26, 2016.
The Center appointed Richard W. Page as the sole panelist in this matter on August 30, 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 registered its domain name at on January 12, 2010 and has maintained an active website on said address since at least October 23, 2010.
Respondent registered on December 5, 2014. 5. Parties' Contentions A. Complainant
Complainant contends that it has a common law trademark (the "OPPLOANS Mark") under Illinois law. Complainant is based in Illinois, but operates throughout the United States. Complainant claims a common law trademark throughout the United States.
Complainant further contends that there is no federal trademark registration for anything resembling "OppLoans" from either Complainant or Respondent. Complainant further contends that is in the process of registering its common law trademark. Complainant asserts that it has had extensive sales and has continued to update, promote and grow its website and its business. Complainant further asserts that its website has prominent reviews from both Google and Facebook and that Complainant recently conducted a question and answer session with "MoneyC" – a website devoted to personal finance.
Complainant alleges that the Disputed Domain Name is confusingly similar to the OPPLOANS Mark because it uses the entirety of the OPPLOANS Mark with only the descriptive name "reviews" added.
Complainant alleges that Respondent has no rights or legitimate interests in the Disputed Domain Name.
Complainant further alleges that Respondent is not authorized by Complainant to use the OPPLOANS Mark or the Disputed Domain Name.
Complainant avers that Respondent registered and is using the Disputed Domain Name in bad faith. Complainant further avers that Respondent's website has numerous references to Complainant's website.
Complainant continues to aver that Respondent is a known typosquatter with at least four previous cases brought against him under the auspices of the UDRP. Respondent lost all four of these cases. Indeed, in all four of his prior cases as in this case, Respondent has attempted to typosquat similar names to existing financial services lenders in order to trick customers into seeking loans through his organization. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable."
Respondent is not obliged to participate in a domain name dispute proceeding, but if he fails to do so, asserted facts that are not unreasonable may be taken as true and Respondent would be subject to the inferences that flow naturally from the information provided by Complainant. See Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000‑0441.
Even though Respondent has failed to file a Response or to contest Complainant's assertions, the Panel will review the evidence proffered by Complainant to verify whether the essential elements of the claims are met.
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
(i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and,
(ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and,
(iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant asserts that it has a common law trademark in the OPPLOANS Mark and has applied for registration.
Complainant claims that it operates throughout the United States. Complainant asserts that it has had extensive sales and has continued to update, promote and grow its website and its business. Complainant further asserts that its website has prominent reviews from both Google and Facebook and that Complainant recently conducted a question and answer session with "MoneyC" – a website devoted to personal finance.
Respondent has not contested these assertions.
Therefore, the Panel finds that Complainant has made a sufficient showing for purposes of this proceeding to have acquired secondary meaning within the online financial community to constitute a valid right for the purposes of the Policy.
Complainant further contends that the Disputed Domain Name is identical with and confusingly similar to the OPPLOANS Mark pursuant to the Policy paragraph 4(a)(i).
The Panel notes that the entirety of the OPPLOANS Mark is in the Disputed Domain Name. As numerous prior UDRP panels have recognized, the incorporation of a trademark in its entirety typically is sufficient to establish that a Disputed Domain Name is identical or confusingly similar to Complainant's trademark. Rapidshare AG and Christian Schmid v. majeed randi,WIPO Case No. D2010-1089.
The addition of other non-distinctive terms such as "reviews" in the Disputed Domain Name does not affect a finding that the Disputed Domain Name is identical or confusingly similar to Complainant's trademark.
Therefore, the Panel finds that the Disputed Domain Name is confusingly similar to the OPPLOANS Mark pursuant to the Policy paragraph 4(a)(i). B. Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interests in the Disputed Domain Name pursuant to the Policy paragraph 4(a)(ii).
Paragraph 4(a)(ii) requires Complainant to prove that Respondent has no rights or legitimate interests in the Disputed Domain Name. Paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") states that once Complainant makes a prima facie case in respect of the lack of rights or legitimate interests of Respondent, Respondent carries the burden of demonstrating it has rights or legitimate interests in the Disputed Domain Name. Where Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
Complainant contends that Respondent has no relationship with or permission from Complainant for the use of the OPPLOANS Mark.
The Policy paragraph 4(c) allows three nonexclusive methods for the Panel to conclude that Respondent has rights or legitimate interests in the Disputed Domain Name:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed 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 Disputed 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 Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant avers that Respondent has not established any trademark rights in the Disputed Domain Name through use and that Respondent tries to trick customers into seeking loans through his organization.
From these admittedly meagre allegations, the Panel is willing to infer that (i) any preparations made by Respondent were not the rendition of bona fide good or services, (ii) Respondent has not been commonly known by the Disputed Domain Name and (iii) Respondent's use is commercial and intended to divert customers. These inferences suffice to make a prima facie showing.
Respondent has not contested the allegations. Therefore, the Panel finds that Complainant has demonstrated the elements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith in violation of the Policy paragraph 4(a)(iii).
The Policy paragraph 4(b) sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of the Disputed Domain Name:
(i) circumstances indicating that you [Respondent] have registered or you have acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Disputed Domain Name; or
(ii) you [Respondent] have registered the Disputed 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 you have engaged in a pattern of such conduct; or
(iii) you [Respondent] have registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Disputed Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the OPPLOANS Mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
Complainant alleges that Respondent's website has numerous references to Complainant's website to attract customers. Complainant continues to allege that Respondent is a known typosquatter with at least four previous cases brought again him under the auspices of the UDRP. Respondent lost all four of these cases. Indeed, in all four of his prior cases as in this case, Respondent has attempted to typosquat similar names to existing financial services lenders in order to trick customers into seeking loans through his organization.
Respondent has not contested Complainant's allegations of bad faith.
Therefore, the Panel finds that Complainant has shown the elements of paragraph 4(b)(iv) of the Policy and 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 name be transferred to Complainant.
Richard W. Page
Sole Panelist
Date: September 9, 2016
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