Complainant is CPCWA Co, LLLP, United States of America (“U.S.”), internally represented.
Respondent is Privacy Service Provided by Withheld for Privacy ehf, Iceland / James Slavin, U.S.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2021. On December 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 Complainant on December 20, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint also on December 20, 2021.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 22, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 11, 2022. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 14, 2022.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on January 27, 2022. 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 BackgroundComplainant is owner of registration of the word service mark POWER FINANCE TEXAS on the Principal Register of the United States Patent and Trademark Office (USPTO), registration number 5,750,291, registration dated May 14, 2019, in international class 36, covering “consumer lending services”.
Complainant provides personal loan services, operating several branch locations in the State of Texas, U.S. Complainant operates a commercial website offering personal loans at “www.powertexasfinance.com”.1
According to the Registrar’s verification, Respondent is registrant of the disputed domain name. According to that verification, the disputed domain name was registered (or transferred to) Respondent on October 25, 2021.
Respondent has used the disputed domain name in connection with a website offering loan services through online application and direct deposit to the borrower’s bank account. Respondent’s website has a different look and feel from Complainant’s website, but it uses in its heading Complainant’s service mark without the misspelling which is part of the disputed domain name.
The registration agreement between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, one of which is the Center, regarding allegations of abusive domain name registration and use (Policy, paragraph 4(a)).
5. Parties’ Contentions A. ComplainantComplainant alleges that it owns rights in the service mark POWER FINANCE TEXAS, and that the disputed domain name is confusingly similar to that service mark.
Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name because: (1) Complainant is registrant of its service mark with respect to consumer lending services, and; (2) the disputed domain name is being used to impersonate Complainant’s business for the financial benefit of Respondent.
Complainant argues that Respondent registered and is using the disputed domain name in bad faith because the disputed domain name is being used to impersonate Complainant and is causing confusion and harm to consumers, for the financial benefit of Respondent.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsIt is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceeding that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
The Center formally notified the Complaint to Respondent at the email and physical addresses provided in its record of registration. Courier delivery to Respondent could not be completed because the physical address in Respondent’s record of registration was materially incomplete. There is no indication in the case file that email transmission to Respondent was not completed. The Center took those steps prescribed by the Policy and the Rules to provide notice to Respondent, and those steps are presumed to satisfy notice requirements.
Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Each of the aforesaid three elements must be proved by a complainant to warrant relief.
A. Identical or Confusingly SimilarComplainant has provided evidence of rights in the service mark POWER FINANCE TEXAS, including by registration at the USPTO and use in commerce. See Factual Background, supra. Respondent has not challenged Complainant’s assertion of rights. The Panel determines that Complainant has established rights in the service mark POWER FINANCE TEXAS.
Respondent registered the disputed domain name that incorporates Complainant’s POWER FINANCE TEXAS service mark, but adding the letter “r” following the “f” to form “frinance”, as well as adding the Top-Level Domain (“TLD”) “.loan”. The term “frinance” is not part of the English language. The misspelling is presumably intended to be overlooked by Internet users searching for Complainant’s website and mistakenly finding Respondent’s. The deliberately misspelled disputed domain name is confusingly similar to Complainant’s service mark as a matter of visual impression. The addition of the TLD “.loan” does not prevent a finding of confusing similarity, particularly as Complainant is in the business of making loans.
The Panel determines that Complainant has established rights in the service mark POWER FINANCE TEXAS, and that the disputed domain name is confusingly similar to that service mark.
B. Rights or Legitimate InterestsComplainant’s allegations to support Respondent’s lack of rights or legitimate interests in the disputed domain name are outlined above in section 5A, and the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent has not replied to the Complaint, and has not attempted to rebut Complainant’s prima facie showing of lack of rights or legitimate interests.
Respondent’s use of the disputed domain name to host a website apparently offering a substantially similar service to that offered by Complainant does not constitute a bona fide offering of goods or services, nor does it constitute fair use of Complainant’s service mark in the disputed domain name.2
Respondent’s use of the disputed domain name does not otherwise manifest rights or legitimate interests.
The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithIn order to prevail under the Policy, Complainant must demonstrate that the disputed domain name “has been registered and is being used in bad faith” (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy states that “for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith”. These include that, “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location”.
Given the deliberate misspelling of Complainant’s service mark, and registration by Respondent using the “.loan” TLD (corresponding to Complainant’s line of business), the Panel reasonably presumes that Respondent was aware of Complainant’s rights in its service mark when it registered the disputed domain name and undertook to take advantage of Complainant’s goodwill. Respondent has offered no justification for its conduct, and no legitimate justification can be drawn from the face of Respondent’s conduct. Respondent registered and is using the disputed domain name intentionally for purposes of commercial gain to establish Internet user confusion regarding Complainant as the source, sponsor, affiliate or endorser of Respondent’s website. Such use of Complainant’s service mark in the disputed domain name constitutes bad faith within the meaning of the Policy.
The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
7. DecisionFor 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
Frederick M. Abbott
Sole Panelist
Date: January 29, 2022
1 Complainant did not provide a description of its business in the Complaint. The description in the decision above is based on the Panel’s visit to Complainant's website of January 29, 2022.
2 There is no direct evidence on the record of this proceeding as to whether Respondent is legitimately making loans. Given the surrounding circumstances, it seems doubtful. However, for purposes of this decision is not necessary for the Panel to ascertain whether Respondent is only taking unfair advantage of Complainant's reputation and advertising, or is also engaged in fraudulent financial activity of some type.