WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Resmac, Inc. d/b/a Lendgenuity v. Whois Agent, Domain Protection Services, Inc. / Jon Clifford
Case No. D2017-1692
1. The Parties
Complainant is Resmac, Inc. d/b/a Lendgenuity of Boca Raton, Florida, United States of America (“United States”), represented by The Keller Law Firm, LLC, United States.
Respondent is Whois Agent, Domain Protection Services, Inc. of Denver, Colorado, United States / Jon Clifford of Huntington Beach, California, United States.
2. The Domain Name and Registrar
The disputed domain name <mylendgenuity.com> is registered with Name.com, Inc. (Name.com LLC) (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2017. On September 1, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 1, 2017, 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 September 5, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an Amended Complaint. An Amended Complaint was filed by Complainant on September 10, 2017.
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 proceedings commenced on September 13, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 3, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 4, 2017.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on October 11, 2017. 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, Resmac, Inc., is a provider of mortgage lending and other mortgage banking services. Complainant provides its services under the assumed business name Lendgenuity, which was registered by Complainant as a fictitious, or assumed, name with the Division of Corporations of the State of Florida on July 6, 2016. Complainant filed an application to register the trademark LENDGENUITY in the United States on September 9, 2016 for mortgage banking services, claiming first use of the LENDGENUITY mark on August 1, 2016 (Application No. 87-162,251). Complainant’s United States application matured to registration on April 18, 2017 (Registration No. 5,185,801). Complainant also owns and uses the domain name <lendgenuity.com> for a website promoting its mortgage lending services.
Respondent registered the disputed domain name on March 23, 2017. The disputed domain name currently does not resolve to an active web page, but as of September 13, 2017 resolved to a web page promoting mortgage lending services under the title Lendgenuity.
5. Parties’ Contentions
Complainant asserts that it owns and has used the LENDGENUITY mark since August 1, 2016 in connection with mortgage lending and other mortgage banking services. Complainant further asserts that it owns rights in the LENDGENUITY mark by virtue of having obtained a trademark registration for the LENDGENUITY mark in the United States, the country where Respondent is located.
Complainant contends that the disputed domain name is confusingly similar to Complainant’s LENDGENUITY mark because it contains the LENDGENUITY mark in its entirety. Complainant also contends that the inclusion in the disputed domain name of the generic prefix “my” does not distinguish the disputed domain name and is thus irrelevant.
Complainant argues that Respondent lacks any rights or legitimate interests in the disputed domain name because Respondent (a) has not used the disputed domain name for a bona fide offering of goods and services, (b) is not commonly known by the disputed domain name, and (c) is not making a legitimate non-commercial or fair use of the disputed domain name, as Respondent has used the disputed domain name in connection with a website that copies significant elements of Complainant’s website at <lendgenuity.com> in an effort by Respondent to pass itself off as Complainant.
Finally, Complainant asserts that Respondent registered and has used the disputed domain name in bad faith since Respondent has used the disputed domain name to attract, for commercial gain, Internet users to a website that spoofs Complainant’s website at <lendgenuity.com>. Complainant further argues that Respondent’s website at the disputed domain name does not provide any actual services, but likely is being used to fraudulently acquire personal information from members of the public who are looking to interact with Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. The Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340.
A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0, section 1.2.1. Here, while Complainant has provided evidence that it owns a registration for the LENDGENUITY mark in the United States, such registration only issued to registration on April 18, 2017, whereas the disputed domain name was registered on March 23, 2017. Complainant, however, filed its application to register the LENDGENUITY mark on September 6, 2016 (claiming a date of first use on August 1, 2016). Thus, although Complainant’s registration for LENDGENUITY was obtained after Respondent registered the disputed domain name on March 23, 2017, it is nevertheless evidence that Respondent has rights in the LENDGENUITY mark for purposes of the first element only. WIPO Overview 3.0 at section 1.2.1.
With Complainant’s rights in the LENDGENUITY mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s LENDGENUITY mark as it incorporates the LENDGENUITY mark in its entirety. The addition of the descriptive or generic prefix “my” at the head of the disputed domain name does not distinguish the disputed domain name and, in fact, suggests a connection to Complainant and its LENDGENUITY services as consumers could easily believe that the disputed domain name concerns personal account pages for consumers of Complainant’s LENDGENUITY mortgage lending services. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the LENDGENUITY mark and in showing that the disputed domain name is confusingly similar to that trademark.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production to the respondent, the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
From the record in this case, it appears that Respondent registered the disputed domain name almost seven months after Complainant adopted the LENDGENUITY mark and some six months after Complainant filed an application to register the LENDGENUITY mark in the United States. The evidence submitted by Complainant, none of which has been contested by Respondent who has chosen not to file a response, shows that Respondent has not made any bona fide use of the disputed domain name and has not used such for any legitimate or fair use purpose. Instead, Respondent has used the disputed domain name to redirect Internet users to a web page that mimics portions of Complainant’s website at <lendgenuity.com> and which uses the title “Lendgenuity” and a copyright notice that lists Complainant as the copyright holder. Respondent also initially registered the domain name under a privacy service, thus obfuscating its ownership and lack of connection to Complainant. Needless to say, such attempt to pass off the disputed domain name and website as connected to Complainant is not a legitimate use.
Given that Complainant has established with sufficient evidence that it owned rights in the LENDGENUITY mark prior to Respondent’s registration of the disputed domain name, and given Respondent’s above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case.
C. Registered and Used in Bad Faith
In the instant case, the Panel concludes that Respondent registered and has used the disputed domain name in bad faith. The evidence submitted, none of which is countered by Respondent who chose not to participate in this proceeding, shows that Respondent opportunistically registered the disputed domain name over six months after Complainant had filed an application in the United States for the LENDGENUITY mark and had commenced used of the LENDGENUITY mark for mortgage lending services. That Respondent used the disputed domain name for a website that sought to pass itself off as a mortgage lending website operated by Complainant establishes that Respondent intentionally targeted Complainant and its LENDGENUITY mark and did so to misdirect and attract consumers to its website for Respondent’s profit or possibly a nefarious purpose.
Accordingly, the Panel finds that Complainant succeeds under this element of the Policy.
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 <mylendgenuity.com> be transferred to Complainant.
Date: October 16, 2017