The Complainant is JFQ Lending, Inc., United States of America (“United States”), represented by Quarles & Brady LLP, United States.
The Respondent is WHOIStrustee.com Limited, Registrant of jfqlending-reviews.com, United Kingdom / Papalopos Demotrio, Domain Trustee, Greece. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 8, 2021. On April 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 12, 2021, 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 April 28, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On May 6, 2021, the Complainant indicated that it would not amend the Complaint. 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 the Respondent of the Complaint, and the proceedings commenced on May 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 3, 2021. The Center appointed Adam Taylor as the sole panelist in this matter on June 12, 2021. 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 Since its establishment in 2017, the Complainant has provided mortgage lending services under the name “JFQ Lending”. Having expanded rapidly, the Complainant now operates in some 40 states in the United States. The Complainant has secured over USD 7.2 billion in funding for its clients. The Complainant has achieved a customer review rating of 4.86/5 based on some 2,270 reviews on Better Business Bureau (www.bbb.org). The disputed domain name was registered on August 14, 2020. As of April 1, 2021, there was a website at the disputed domain name which stated in the header: “JFQ Lending Reviews. Mortgage Company Reviews & Complaints.” The homepage displayed the heading “JFQ Lending” in large font, followed by the text: “Reviews for JFQ Lending of Scottsdale, Arizona. Read the user submitted comments below. If you’ve had an experience with this mortgage lending and refinance company submit your own review and share your experience below.” Beneath this, there was a list of purported one-star and two-star reviews of the Complainant. The “About This Site” section in the footer described the site as providing “Complaints and Reviews for Mortgage company JFQ Lending in Scottsdale, Arizona - owned and operated by John Kresevic”, followed by the Complainant’s address and a link to the Complainant’s own site. The footer also included a link to “IFQ Lending Complaints at BBB.org” under the heading “More JFQ Lending Reviews”. The following statement appeared at the bottom of the footer: “This website is in no way operated by, owned or affiliated with JFQ Lending Inc.” Another page on the website contained negative information about the owner of the Complainant. 5. Parties’ Contentions A. Complainant The following is a summary of the Complainant’s contentions. The Complainant has expended considerable time and effort to increase brand recognition, including advertisements and sponsorship and has developed a sizeable social media presence. The Complainant’s success has garnered public recognition by consumers and the industry. The Complainant has acquired common law rights in the JFQ LENDING trade mark. On March 4, 2021, the Complainant applied under Serial No. 90559309 for a United States Trademark for “JFQ Lending” in class 36. The disputed domain name is confusingly similar to the Complainant’s trade mark as it merely appends the word “reviews”, which does not sufficiently distinguish the disputed domain name from the Complainant’s trade mark. The disputed domain name incorporates the Complainant’s trade mark in its entirety. The Respondent lacks rights or legitimate interests in respect of the disputed domain name. The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name. It does not appear that the Respondent is using the disputed domain name for a commercial purpose. The Respondent’s website does not constitute fair use. The disputed domain name falsely suggests affiliation with the Complainant in that it consists of the Complainant’s trade mark plus an additional term. The use of the word “reviews” is suggestive of sponsorship by the Complainant because websites often contain reviews to demonstrate customer satisfaction and, indeed, the Complainant’s own website includes a review section. The website itself also gives the impression that it is affiliated with the Complainant. The disclaimer at the bottom of the website is not effective because it does not remedy the damage already created by the other content on the site. The use of a privacy shield service makes it more likely that the Respondent lacks rights or legitimate interests. There is no evidence that the Respondent has ever been commonly known by the disputed domain name. Even if so, that would not suffice to constitute rights or legitimate interests because the Complainant never authorised the Respondent to use its mark. The disputed domain name was registered and is being used in bad faith. The Respondent registered the disputed domain name primarily for the purpose of disrupting the business the Complainant. The Respondent is a competitor in that it acts in opposition to the Complainant. The Respondent’s primary purpose is to damage the Complainant’s business by posting overwhelmingly negative reviews, in contrast to the overwhelmingly positive reviews on other websites. Furthermore, the Respondent’s website links only to negative reviews on the Better Business Bureau website, despite the Complainant having nearly a five-star rating from over 2,000 reviews on the same site. The link to the name of the Complainant’s owner on the Respondent’s website is misleading because users would expect to find additional information about that person, whereas it only contains on account of that person’s alleged criminal record. The Respondent does not provide any information or context as to why this is relevant to the provision of reviews of Complainant’s business. The Respondent intended to disrupt Complainant’s business and to damage its reputation by publishing highly negative views with a propensity to undermine any prior favourable views of website visitors. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under the Policy, the Complainant is required to prove on the balance of probabilities that: - the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights; The Panel finds that the Complainant has established rights in the mark JFQ LENDING by virtue of its unregistered trade mark rights deriving from its extensive use of that name. See section 1.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Section 1.8 of the WIPO Overview 3.0 makes clear that, where the relevant trade mark is recognisable within the disputed domain name, the addition of other terms, whether descriptive or otherwise, would not prevent a finding of confusing similarity under the first element. Here, the Complainant’s distinctive trade mark is readily recognisable within the disputed domain name and, accordingly, the addition of the term “reviews” is insufficient to avert a finding of confusing similarity. For the above reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark. The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests As explained in section 2.1 of WIPO Overview 3.0 , the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element. Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark. Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests. As to paragraph 4(c)(iii) of the Policy, the Respondent has used the disputed domain name for a website criticizing the Complainant. UDRP jurisprudence recognises that the use of a domain name for fair use such as noncommercial free speech would in principle support a respondent’s claim to a legitimate interest under the Policy. See section 2.6 of WIPO Overview 3.0. However, as explained in section 2.6.1 of WIPO Overview 3.0, the criticism must be genuine and noncommercial; in a number of UDRP decisions where respondents have relied on free speech, panels have found that this was primarily a pretext for cybersquatting or tarnishment. The Panel notes the following: First, the Respondent’s use of the word “reviews” in conjunction with the Complainant’s trade mark in the disputed domain name appears designed to imply that it leads to an independent website comprising reviews of the Complainant. However, the website gives the impression that it is affiliated with the Complainant in that the home page is prominently branded with the Complainant’s name. Also, the footer includes (only) the Complainant’s name and address. The Panel does not consider that the disclaimer on the website is sufficient to dispel the risk of affiliation with the Complainant, given that it is located at the very bottom of the footer where it is unlikely to be seen by most users. Indeed, the Panel considers that the Respondent’s use of a disclaimer in these circumstances instead constitutes an admission that users may be confused. Second, not only is the disputed domain name registered through a privacy service and the identity of the site operator not shown on the website, but there is also a “Russian doll” scenario whereby the underlying registrant of the disputed domain name “disclosed” by the Registrar following the filing of the Complaint turned out to be yet another privacy service. This indicates that the Respondent went to some lengths to conceal its identity. Section 4.4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), notes that such “multi-layered obfuscation” may support an inference of bad faith, e.g., as an attempt to shield illegitimate conduct from a UDRP proceeding. Third, given that the Complainant enjoys an almost five-star review profile on major review websites such as Better Business Bureau (over 2,000 reviews), the fact that the “reviews” on the Respondent’s website are all negative implies that, even if genuine, they have been cherrypicked to create a negative impression of the Complainant rather than being the product of an impartial review process. Furthermore, the unexplained inclusion of negative personal information about the Complainant’s CEO supports the conclusion that the disputed domain name is not being used for a genuine review website, as does the fact that, under “More JFQ Lending Reviews”, the website apparently links specifically to complaints about the Complainant on the Better Business Bureau website rather than to the overwhelmingly positive Complainant reviews on that site. Fourth, the Respondent has not filed a Response in this proceeding to identify itself or to contest the Complainant’s assertions as to the illegitimacy of the Respondent’s website. Accordingly, for the above reasons, the Panel considers that, on the balance of probabilities, the disputed a genuine anddomain name has not been used for genuine and noncommercial criticism of the Complainant, but primarily as a pretext to damage the Complainant’s business and tarnish its trade mark. Nor is there any evidence that paragraphs 4(c)(i) or (ii) of the Policy apply in the circumstances of this case. The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent. The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith As explained above, the Panel has concluded that the Respondent registered and used the disputed domain name for a website that purported to be a legitimate review site but that, on the balance of probabilities, was more likely to have been designed to damage the Complainant’s business and tarnish its trade mark. In these circumstances, the Panel considers that the Respondent has registered and is using the disputed domain name in bad faith and that the Complainant has established the third element of paragraph 4(a) 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 Adam Taylor
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Sole Panelist
Date: June 25, 2021
Full & Egal Universal Law Academy