Westmore · UDRP DecisionRslfunding.com
The Panel ordered transfer of <rslfunding.com>. It found that the Complainant had established common-law rights in RSL FUNDING through commercial use and evidence of advertising and promotional activity. The domain wholly incorporated that mark, the Respondent lacked rights or legitimate interests, and its use for a pay-per-click page containing links to competing financial services demonstrated bad-faith registration and use.
The timeline behind rslfunding.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind rslfunding.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that an unregistered designation can support a UDRP complaint where the record establishes acquired distinctiveness through sustained commercial use and promotional evidence. It also shows the importance of the landing page's subject matter: sponsored links to competing services reinforced both the absence of legitimate interests and the inference of intentional commercial diversion.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION RSL Funding, LLC v. Hyo Jung Park Case No. D2013-2050 1. The Parties The Complainant is RSL Funding, LLC of Houston, Texas, United States of America represented by The Feldman Law Firm LLP, United States of America. The Respondent is Hyo Jung Park of Gim Hae, Republic of Korea. 2. The Domain Name and Registrar The disputed domain name <rslfunding.com> is registered with Netheadz.ca Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2013. On November 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 4, 2013, the Registrar transmitted by email to the Center its verification response confirming the Respondent as the registrant and provided 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 19, 2013. In accordance with paragraph 5(a) of the Rules, the due date for Response was January 8, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2014. The Center appointed Rodrigo Azevedo as the sole panelist in this matter on January 15, 2014. 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 paragraph 7 of the Rules. 4. Factual Background The Complainant operates as a fee-based marketing and administrative services company which identifies prospective sellers of a variety of future payments and long-term receivables across the United States of America. The RSL FUNDING trademark is not formally registered as trademark. The Complainant has been using the trademark RSL FUNDING in connection with its operation in commerce since 2009. The Complainant has registered several domain names incorporating the trademark RSL FUNDING, including <rslfundingllc.com>, <rslfundingllc.biz>, <rslfundingllc.info>, <rslfundingllc.mobi>, <rslfundingllc.net>, <rslfundingllc.org> and <rslfundingllc.us>. The disputed domain name was registered by the Respondent on September 22, 2013. The Panel accessed the website displayed at the disputed domain name on January 27, 2014, and there was a pay-per-click page with several links for financial services, including sections such as “structured settlement”, “cash settlement”, “annuity settlement”, “lump sum payout”, etc . 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions: (i) The disputed domain name is identical or confusingly similar to the trademark in which the Complainant has rights. The Complainant has extensively used the trademark RSL FUNDING in commerce over the last five years, coupled with its extensive advertising, media recognition, and reputation, which generates exclusive trademark rights at least with respect to purchase of settlement payments and other long-term financial assets. With the exception of the generic top-level domain (“gTLD”) “.com”, the disputed domain name is identical to the Complainant’s RSL FUNDING trademark. (ii) The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has never been authorized by the Complainant to use the RSL FUNDING trademark in any way, shape or form, much less as part of the disputed domain name. The disputed domain name does not reflect any of the Respondent’s business names. The Respondent does not own any trademarks that are identical or similar to the disputed domain name. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, and its intent is for commercial gain and to misleadingly divert consumers or to tarnish the Complainant’s trademark. The Respondent is not using the disputed domain name to present a bona fide offering of goods and services. (iii) The Respondent registered and is using the disputed domain name in bad faith. The timing of the Respondent’s registration of the Complainant’s well-known trademark is indicative of bad faith use under paragraph 4(b)(i) of the Policy. The Respondent is a cybersquatter as evidenced by the thousands of other names the Respondent is offering to sell. The only conclusion that reasonably may be drawn from the evidence is that the Respondent: (a) intends to attract Internet users to its website by creating a likelihood of confusing with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of its website; (b) registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant; and/or (c) registered the disputed domain to prevent the Complainant from reflecting its trademark in a corresponding domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant shall prove the following three elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii)- the 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. A. Identical or Confusingly Similar The Panel has no doubt that “rsl funding” is a term directly connected with the Complainant’s activities in the financial services in the United States of America. The Complainant does not own any trademark registration and asserts common law rights over the RSL FUNDING trademark. Under the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), in order to succeed asserting common law rights a “complainant must show that the name has become a distinctive identifier associated with the complainant or its goods or services. Relevant evidence of such "secondary meaning" includes length and amount of sales under the trademark, the nature and extent of advertising, consumer surveys and media recognition. The fact that the secondary meaning may only exist in a small geographical area does not limit the complainant's rights in a common law trademark . ” See Uitgeverij Crux v. W. Frederic Isler , WIPO Case No. D2000-0575 , and Skattedirektoratet v. Eivind Nag , WIPO Case No. D2000-1314 . In fact, , the Complainant has extensively used the mark RSL FUNDING in connection with its operation in commerce for five years in the United States of America and has submitted evidence of its advertising and promotional activities and expenditures. The Panel is satisfied that the Complainant has established common law trademark rights in RSL FUNDING for the purposes of this proceeding. The trademark RSL FUNDING is wholly encompassed within the disputed domain name. The addition of a gTLD “.com” is irrelevant when determining whether a disputed domain name is confusingly similar to a registered trademark. As a result, the Panel finds the disputed domain name confusingly similar to the Complainant’s trademark, and that the Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides some examples without limitation of how a respondent can demonstrate a right or legitimate interest in a domain name by showing one of the following facts: (i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue. Based on the Respondent’s default and on the prima facie evidence in the Complaint, the Panel finds that the above circumstances are not present in this particular case and that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel notes that the present record provides no evidence to demonstrate the Respondent’s intent to use or to make preparations to use the disputed domain name in connection with a bona fide offering of goods or services. Indeed, the webpage that is published at the disputed domain name hosts pay-per-click links to competitor’s websites. The Complainant has not licensed or authorized the use of its trademark to the Respondent, and it does not appear from the present record that the Respondent is commonly known by the disputed domain name. Consequently, the Panel is satisfied that the Respondent has no rights or legitimate interests in the disputed domain name, and the Complainant has proven the second element of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy states that the following circumstances in particular, but without limitation, shall be evidence of registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or (ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its website or location or of a product or service on its website or location When the disputed domain name was registered in 2013, the trademark RSL FUNDING was already associated with the Complainant’s activities in financial business for several years. The Complainant has furthermore provided evidence that “RSL Funding” is solely associated with the Complainant. Therefore, this Panel finds it highly likely that the Respondent was aware of the Complainant’s reputation and business. The disputed domain name is being used as a pay-per-click landing page, displaying sponsored links for third-party websites that offer competing products. Therefore, in doing so, the Respondent: (i) created a likelihood of confusion with the Complainant’s trademark; (ii) most likely obtained click-through revenue from this practice; and (iii) deprived the Complainant from selling its products to prospective clients who are clearly looking for the Complainant and, at the same time, promoted products offered by the Complainant’s competitors. In situations like this, former UDRP decisions have considered this type of use of a domain name enough to demonstrate bad faith. For reference on the subject, see Serta Inc. v. Charles Dawson , WIPO Case No. D2008-1474 ; see also Asian World of Martial Arts Inc. v. Texas International Property Associates , WIPO Case No. D2007-1415 . Accordingly, the Panel finds that the Complainant has proved that the disputed domain name was registered and is being used in bad faith, satisfying the third element 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 names <rslfunding.com> be transferred to the Complainant. Rodrigo Azevedo Sole Panelist Date: January 27, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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