WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Marlette Funding, LLC v. Whois Privacy Corp
Case No. D2018-1907
1. The Parties
The Complainant is Marlette Funding, LLC of Wilmington, Delaware, United States of America (“United States”), represented by Kelley Drye & Warren, LLP, United States.
The Respondent is Whois Privacy Corp of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <besteggloansreviews.com> is registered with Internet Domain Service BS Corp (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 22, 2018. On August 22, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 23, 2018, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on August 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 19, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 21, 2018.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on October 10, 2018. 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
According to the Complaint the Complainant is a financial services technology company founded in 2013.
It began trading with an innovative online instalment loan product which was branded using the mark BEST EGG. Since launching this product the Complainant has provided technology and services worth over USD 6 billion in BEST EGG loans.
The Complainant is the owner of a number of United States trade mark registrations for the mark BEST EGG. Copies of the registration certificates are set out in Annex 3 to the Complaint and comprise registrations 4603274 and 4603337 for BEST EGG and 4603338 for an egg-shaped device incorporating “best egg” in lower case (all registered on September 9, 2014).
The BEST EGG marks have featured prominently in connection with the BEST EGG loan product and related technology and services. The marks are also actively used by the Complainant on the Internet including websites using the domain names <www.bestegg.com> and <www.mybestegg.com>. The websites are devoted to the promotion and sale of the Complainant’s products bearing BEST EGG marks. Since its commencement the website has been the subject of 11,829,579 sessions across 6,392,456 unique users, resulting in 65,153,508 page views. Print outs from the Complainant’s website “bestegg.com”, Facebook, and Twitter pages are exhibited at Annex 4 to the Complaint.
The Complainant submits that its marks BEST EGG are well known in the United States as a result of the excellence of its products, and its longstanding use, extensive promotion and advertising using the BEST EGG mark. It submits that it has a valuable reputation and has achieved immeasurable goodwill in the BEST EGG marks.
The disputed domain name resolves to a website which purports to offer small dollar payday loans to individual customers and holds itself out as “Best Egg Loans Reviews”.
In the absence of a response and evidence to the contrary, this Panel finds the evidence adduced by the Complainant to be true and proceeds to render its decision on that basis.
5. Parties’ Contentions
The Complainant submits:
(i) The domain name in dispute is confusingly similar to the Complainant’s BEST EGG marks;
(ii) The Respondent has no rights or legitimate interests in the disputed domain name. The disputed domain name is not the trade or company name of the Respondent which is not commonly known by that name;
(iii) Given the Complainant’s prior reputation in the BEST EGG marks, the registration of the disputed domain name was made with knowledge of the Complainant’s rights. The Respondent in offering similar services to the Complainant is seeking to create a false association with the Complainant. This constitutes registration and use in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
As set out above the Panel is satisfied that the Complainant has registered rights and trading goodwill in the BEST EGG mark.
The Complainant submits that the only difference between the disputed domain name and the BEST EGG mark is the addition of the words “loans” and “reviews” and the generic Top-Level Domain (“gTLD”) “.com”. The words “loans” and “reviews” are irrelevant as the marks are clearly recognizable in the disputed domain name.
The Panel also notes that “loans” and “reviews” are descriptive of the Complainant’s activities. The Panel finds for the Complainant in this element of the Policy.
B. Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, there is no evidence that it is the trade or company name of the Respondent, nor that it is commonly known by or licensed to use the name.
The limited evidence available shows that the Respondent’s use of the mark and disputed domain name is not legitimate but is used to establish a false association with the Complainant so as to attract for commercial gain traffic from the Complainant’s own website.
On the basis of the Complainant’s evidence and in the absence of evidence from the Respondent the Panel accepts the Complainant’s submissions and finds for the Complainant in respect of this element of the Policy.
C. Registered and Used in Bad Faith
The Complainant has had prior use of the BEST EGG mark for several years before the disputed domain name was registered on March 9, 2017. The evidence from the Complainant shows that the Complainant had registered trade mark rights before then and through use of the mark established a goodwill in the BEST EGG mark. The Respondent would therefore have been aware of the Complainant’s rights at the date of registration of the disputed domain name.
Moreover, by including the BEST EGG mark in its entirety in the disputed domain name which resolves to a website which offers services similar to those of the Complainant the Respondent is seeking to create a false association with the Complainant’s trading activities. (The website at the disputed domain name appears to simply plug the entire term “Best Egg Loans Reviews” in a financial services template site as if it were itself a mark of some sort.) This is supported by the fact that the Respondent appears to be using a privacy shield service to conceal its identity.
In the absence of any evidence or submissions to the contrary from the Respondent the Panel accepts the Complainant’s submissions in respect of this element of the Policy and finds for the Complainant.
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 <besteggloansreviews.com> be transferred to the Complainant.
Clive Duncan Thorne
Date: October 18, 2018