loanDepot.com, LLC v. Courtney Jones / Design Tech
Claim Number: FA2106001952713
Complainant is loanDepot.com, LLC (“Complainant”), represented by Hani Sayed of Rutan & Tucker LLP, California, USA. Respondent is Courtney Jones / Design Tech (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loandepotshop.com>, registered with NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 25, 2021; the Forum received payment on June 25, 2021.
On June 27, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <loandepotshop.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 29, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@loandepotshop.com. Also on June 29, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on July 16, 2021.
On July 20, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant submits that the disputed domain name is identical or confusingly similar to the LOANDEPOT trademark or service mark in which it has rights acquired through its ownership of the portfolio of registered trademarks described below and at common law because of the goodwill attaching to the mark through extensive use in its financial services business.
Complainant asserts that it is one of the top 5 largest lenders by volume, after Wells Fargo, Quicken Loans, Bank of America, and JP Morgan Chase.
Complainant claims to acquire more than 500,000 potential borrowers every month, with 1,700 licensed loan officers holding more than 10,000 licenses to serve borrowers in all 50 states, that it has funded more than $275 billion in mortgage loans since its founding and currently ranks as the second largest retail nonbank lender and one of the leading retail mortgage lenders in the United States.
Complainant submits that the disputed domain name incorporates Complainant’s LOANDEPOT mark plus the word “shop” and contends that by merely adding the descriptive word “shop” to Complainant’s mark, Respondent has created confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Previous panels have held that the addition in the domain name of generic, descriptive or common terms to a trademark does not prevent confusing similarity. See Nicole Kidman v. John Zuccarini, D2000-1415 (WIPO Jan. 23, 2001) (<nicolekidmannude.com> was found confusingly similar to film star Nicole Kidman's common law mark in her name under the rule that the domain name is confusingly similar to a mark “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name.”).
Complainant adds that the gTLD extension is irrelevant to a Policy ¶ 4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name arguing that Respondent is not commonly known by the term LOANDEPOTSHOP or any similar name prior to registering the disputed domain name.
Complainant asserts that Respondent is not an authorized provider of Complainant’s services and that Complainant has never licensed or otherwise permitted the Respondent to use any of its trademarks and, in particular, its LOANDEPOT trademark.
Referring to a screen capture annexed to the Complaint, Complainant argues that Complainant alleges that Respondent does not operate a legitimate business, arguing that although he purports to offer money-lending services, the website to which the disputed domain name resolves fails to provide any government-mandated disclosures for money lenders. Furthermore the “Terms of Use “ appear to be copied from a third-party source.
Additionally, Respondent’s website provides a false contact information and the address listed is that of a UPS store as shown in a screenshot of contact information provided in the UPS website.
Also, the so-called privacy policy is listed as “Revised April 30, 2020” which pre-dates the registration of the disputed domain name on April 14, 2021
Complainant alleges that Respondent uses the domain name to perpetrate a “phishing” scheme which cannot constitute legitimate rights and interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
Complainant further submits that Respondent is not making a legitimate, noncommercial, or fair use of the disputed domain name. Instead, Respondent is using the domain name in furtherance of fraudulent activity, namely posing as Complainant. See The Vanguard Group, Inc. v. Vanguards Vanguards / Vanguard Global Holdings Corp, No. FA1910001865172 (Forum Nov. 6, 2019) (Use of a domain name incorporating the mark of another in connection with fraudulent activity is not indicative of any rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii) citing Goodwin Procter LLP v. Gayle Fandetti, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”)).
Complainant alleges that the disputed domain name was registered and is being used in bad faith as it incorporates Complainant's well-known mark and is being used as the address of Respondent’s website to generate revenues by creating confusion with Complainant, by purportedly promoting services that are directly competing with Complainant and is likely being used for "phishing" for users' personal information.
Complainant adds that by adding the descriptive phrase “shop” to Complainant’s LOANDEPOT mark, Respondent is misrepresenting its website as being related to Complainant. Complainant contends that this demonstrates an intent to create confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a service on its website and is likely to misleadingly divert web users trying to locate Complainant and its <loandepot.com> website.
Complainant argues that Respondent registered the domain name with knowledge that Complainant held strong rights in its LOANDEPOT mark, as Complainant’s service mark registrations, its extensive use of the mark, including on the its website at <www.loandepot.com> since 2009 predate the registration of the disputed domain name in July 2019.
Complainant refers again to the screen capture of the website to which the disputed domain name resolves that has been submitted in an annex to the Complainant and submits that it shows that Respondent purports to provide money lending services, referring to itself as LoanDepot but also listing several of Complainant’s competitors on its website.
Complainant submits that such use of the disputed domain name by Respondent in furtherance of promoting competing loan services is likely to create confusion as to the source or endorsement of those financial products. Previous panels have held that using a confusingly similar domain name to offer goods or services in competition with a complainant demonstrates bad faith registration and use under Policy ¶ 4(b)(iv). See Quicken Loans Inc. v. Elizabeth J. Appleoff, FA1311001531562 (Forum Jan. 8, 2014) (finding that use of <rocketloan.net> domain name in connection with payday loans constituted bad faith registration in relation to Complainant’s ROCKETLOAN mark).
In conclusion Complainant submits that the evidence shows that Respondent has intentionally attempted to attract, for commercial gain, Internet users to his/her web site by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
B. Respondent
In his Response, Respondent merely states: “Hello, I registered this domain for a client who was working with Loan Depot. They never finished the approval process, so this domain is no longer in use and has been taken offline. Thank you”
Complainant is a non-bank consumer lender offering home mortgage, refinance, equity, and personal loan products and is the owner of the following United States service mark registrations.
· United States registered service mark, LOANDEPOT, registration number 3.804,520, registered on the Principal Register on June 15, 2010 for services in international class 36;
· United States registered service mark, LOANDEPOT (design), registration number 3.875, 936 registered on the Principal Register on November 16, 2010 for services in international class 36;
· United States registered service mark, LOANDEPOT, registration number 4,026,025 registered on the Principal Register on September 13, 2011 for services in international classes 35, 36, 38, 41 and 48;
· United States registered service mark, YOUR BEST LOAN. PERIOD. LOANDEPOT (design), registration number 5,448,836 registered on the Principal Register on April 17, 2018 for services in international class 36;
· United States registered service mark, MYLOANDEPOT, registration number 5,638,216, registered on the Principal Register on December 25, 2018 for services in international class 36;
Complainant has an established Internet presence and its domain name <loandepot.com> was registered on October 2, 1995. domain names that incorporate its LOANDEPOT trademark, including <loandepot.com>, which it has owned since 2009. See Annex F (Whois database results for <loandepot.com>).
The disputed domain name was registered on April 19, 2021 and resolves to an active website that purports offer financial services, impersonating Complainant, with false contact information, references to competitors of Complainant and which Complainant alleges is being used to divert Internet traffic intended for Complainant for the purposes of phishing.
Aside from the statement in the Response claiming that he registered the disputed domain name for an employee of Complainant, the only information available about Respondent except is that provided in the Complaint, the Registrar’s WhoIs for the disputed domain name and the information provided by the Registrar in response to the Forum’s request for verification of the registration details for the disputed domain name.
The Registrar has confirmed that Respondent, who has availed of a privacy service to conceal his identity on the published WhoIs, is the registrant of the disputed domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant has provided convincing and undisputed evidence that it has rights in the LOANDEPOT service mark established through its ownership of the portfolio of United States registrations described above and the goodwill that it has established through extensive use of the mark in its financial services business having funded more than $275 billion in mortgage loans since it was founded.
The disputed domain name <loandepotshop.com> consists of Complainant’s LOANDEPOT mark in combination with the word “shop” and the gTLD extension <.com>.
Complainant’s LOANDEPOT mark is the initial and dominant element of the disputed domain name. Neither the word “shop” nor the gTLD extension <.com> contribute any distinguishing character to the disputed domain name.
The element “shop” is generic and implies retail sales and in the circumstances of this case the gTLD extension <.com> would on the balance of probabilities be considered an essential technical extension for a domain name.
This Panel finds therefore that the disputed domain name is confusingly similar to the LOANDEPOT service mark in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing that
· Respondent is not commonly known by the term LOANDEPOTSHOP or any similar name prior to registering the disputed domain name.
· Respondent is not an authorized provider of Complainant’s services;
· Complainant has never licensed or otherwise permitted also Respondent to use any of its trademarks and, in particular, its LOANDEPOT trademark;
· you it is apparent that Respondent is using the disputed domain name is to pass off as Complainant and lure consumers into divulging personal information.
· the screen capture of the website to which the disputed domain name resolves, shows that Respondent is not carrying on any legitimate business using the disputed domain name, and while the website purports to offer financial services, it fails to provide any of government-mandated disclosures for money lenders;
· the Terms of Use on Respondent’s website appears to be copied from another named source;
· Respondent’s contact address on the website is listed as, 34145 Pacific Coast Highway, Dana Point California, which an exhibited screen capture shows is the address of a UPS Store;
· the so-called privacy policy is listed as “Revised April 30, 2020”, whereas the disputed domain name was registered subsequently on April 14, 2021;
· Respondent uses the disputed domain name to perpetrate a “phishing” scheme” which cannot constitute legitimate rights and interests in s domain name
· Respondent is not making a legitimate, noncommercial, or fair use of the domain name but instead, is using the domain name in furtherance of fraudulent activity, namely posing as Complainant.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name.
In his brief Response, Respondent has failed to address any of Complainant’s allegations and so has failed to discharge the required burden of proof.
In these circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
In its uncontested submissions, Complainant has made a convincing case that the registrant of the disputed domain name was aware of Complainant, its name and mark in the disputed domain name was chosen and registered.
Complainant’s rights in and use of the LOANDEPOT mark and the eponymous domain name, predate the registration of the disputed domain name. Complainant has shown that it has established a significant reputation for its financial services business and its LOANDEPOT mark through long and extensive use.
It is improbable that the registrant of the disputed domain name was unaware of Complainant and the balance of probabilities, given the use to which the disputed domain name has been put, the disputed domain name was registered with the intention of taking predatory advantage of Complainant’s reputation and goodwill.
Even if, as he claims, Respondent registered the disputed domain name for an employee of Complainant, it would confirm that the registrant was actually aware of Complainant at the time registration and this would compound the bad faith nature of the registration, especially as Complainant has clearly asserted that it is not granted any license authority to Respondent to register the disputed domain name.
The evidence shows that, notwithstanding Respondent’s assertion that the disputed domain name is no longer being used, it resolves to a website that purports to impersonate Complainant, purports falsely to offer financial services while providing false contact information, and on the balance of probabilities is being used for phishing for personal information of unsuspecting Internet users.
By using Complainant’s mark in the disputed domain name to lure Internet users to his website which contains references to Complainant’s direct competitors, Respondent is using the disputed domain name in bad faith to tarnish Complainant’s mark.
Respondent’s claim to be holding the disputed domain name on behalf of an employee of Complainant is not any way provided defense to Complainant’s allegation that the disputed domain name is being used in bad faith.
The evidence shows that Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of his web site and services that Respondent purports to offer on his web site.
This Panel finds therefore that the disputed domain name was registered and is being used in bad faith.
Complainant has therefore succeeded in the third and final element of the test in Policy ¶ 4(a)(iii) it is entitled to succeed in its application for transfer of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <loandepotshop.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: July 22, 2021
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