The Complainant is Harpeth Financial Services LLC, d/b/a Advance Financial 24/7 of Nashville, Tennessee, United States of America (“United States”), represented by Aaron & Sanders, PLLC, United States.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, Bahamas.
The disputed domain name <af247online.com> (the “Domain Name”) is registered with Internet Domain Service BS Corp (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2018. On August 31, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 3, 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 September 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 30, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 1, 2018.
The Center appointed Ian Lowe as the sole panelist in this matter on October 15, 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.
The Complainant is a financial services company based in Tennessee, United States, founded in 1996. It has over 90 store locations across Tennessee and offers licensed online loan services 24 hours a day/7 days a week (“24/7”) across a number of other states. The Complainant typically provides FLEX loans that comprise high interest lines of credit aligned to the customer’s payday with flexible repayment options as an alternative to more prescriptive payday loans.
The Complainant has used the AF247.COM mark (the “Mark”) to promote its services including consumer loans and lines of credit since at least April 2017, particularly through its website at “www.af247.com”. Its marketing has included direct-mail advertising to over 16 million Americans in 11 different states, as well as prominent radio and television advertising. It has also used the Mark in advertising on billboards and on public buses that it estimates is viewed in total by about 55,000 consumers a year.
The Complainant is the proprietor of United States trademark number 5,501,507 for AF247.COM, applied for on October 25, 2017 and registered on June 26, 2018.
The Domain Name was registered on May 30, 2018. It is registered in the name of a privacy service. The Domain Name resolves to a website purporting to offer a service putting consumers in touch with lenders of short-term cash loans.
The Complainant contends that the Domain Name is confusingly similar to its Mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(i) of the Policy.
At the time of preparation of the Complaint, the Domain Name did not resolve to an active website. The Complainant accessed archived pages of the website to which it resolved in August 2018 and exhibits copies of its index page and About Us page. The index page showed that the website offered payday loans by putting applicants in touch with lenders of short-term cash loans. The About Us page then gave an address in Paige, Texas, United States that did not exist. The archived pages also included a detailed form that applicants would complete requiring detailed personal data including full name, address, telephone number, date of birth, drivers license, income and employer.
The Complainant submitted that the Respondent was either a competitor taking advantage of the Complainant’s mark or operating a fraudulent website phishing for personal data.
Neither the Respondent nor any claimed underlying owner of the Domain Name replied to the Complainant’s contentions.
The Panel has viewed “www.af247online.com” and it does now comprise an active website (the “Website”). The home page features “AF247 ONLINE” and a “Fast Application Form” for a short-term loan. It gives no indication as to the operator of the Website. The About Us page of the website does not give any information as to the identity of the operator but states that its mailing address is an address in El Paso, Texas, United States that does appear on Google Maps.
The Terms of Use page states:
“We are doing business as personifyfinancialonline.com…owns and operates the website located at Personifyfinancialonline.com [sic].”
The domain name <personifyfinancialonline.com> resolves to a sparse, raw Index page listing a zip file last modified on October 15, 2018 and a cgi-bin file last modified on August 29, 2018.
The Privacy Policy page of the Website states that the person providing the privacy notice is Personifyfinancial.com. According to the website at “www.personifyfinancial.com”, Personify Financial is the trading name of Applied Data Finance, LLC of San Diego, California, United States.
For this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
The Complainant has uncontested rights in the Mark by virtue of its trademark registration. Although the date of registration is later than the date of registration of the Domain Name it is sufficient for the purposes of rights under the Policy that the trademark was registered at the time of filing of the Complaint. In addition, however, the Panel is satisfied that as a result of the goodwill and reputation acquired through its widespread use of the Mark over at least 16 months, the Complainant has acquired unregistered trademark rights in respect of the Mark. Including in this case the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name differs from the trademark only by the insertion of the word “online”. In the view of the Panel, this addition of a dictionary term connoting Internet use does not detract from the confusing similarity between the Complainant’s mark and the Domain Name. Accordingly, the Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights.
The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. It is axiomatic that the privacy service in whose name the Domain Name is registered could have no such rights or interests. Nothing is known of the underlying registrant. There is no suggestion on the Website that it is in fact operated by Applied Data Finance LLC, the operator of the personifyfinance.com website. Although the Website has used the Personify Finance name, the Panel considers it most likely that the operator of the Website has substantially copied the privacy policy from the website at “www.personifyfinance.com” and, as exemplified by the wording on the Terms of Use webpage of the Website, been confused as to which website the wording was appearing on.
The Panel agrees that there is nothing on the Website to justify or explain the use of the Mark in conjunction with “online”. In the circumstances, in the absence of any explanation from the Respondent, the Panel cannot conceive of any significance of the Domain Name save as an allusion to the Complainant and its AF247.COM mark. In the view of the Panel, it appears most likely that the Website has been created not for the purpose of a genuine offering of goods and services but to take advantage of the Complainant’s rights in the Mark either to solicit competing business or to phish for personal data for improper purposes. The Respondent has chosen not to respond to the Complaint or to take any steps to counter the prima facie case established by the Complainant and the proper inferences as to the intended use of the Website. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
In light of the nature of the Domain Name and the above finding, the Panel considers it most likely that the Respondent had the Complainant and its rights in the Mark in mind when it registered the Domain Name.
In the Panel’s view, the underlying registrant concealing its identity behind the Respondent registered the Domain Name for commercial gain with a view to taking unfair advantage of the Complainant’s rights in the Mark, by confusing Internet users into believing that the Domain Name was being operated by or authorized by the Complainant. The Respondent and/or the underlying registrant has used the Website either to provide competing services or to extract personal data for improper purposes. Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <af247online.com> be transferred to the Complainant.
Ian Lowe
Sole Panelist
Date: October 27, 2018