GCP REIT IV MLO, LLC v. Sabrina Gonzalez
Claim Number: FA2110001970662
Complainant is GCP REIT IV MLO, LLC (“Complainant”), represented by R. Andrew Patty II of McGlinchey Stafford PLLC, Louisiana, USA. Respondent is Sabrina Gonzalez (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homecourtlending.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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 26, 2021; the Forum received payment on October 26, 2021.
On October 27, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <homecourtlending.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 October 27, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@homecourtlending.com. Also on October 27, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 19, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions.
Complainant offers various financial services. Complainant submits that it has common law rights in the HOMECOURTE LENDING mark through its use of the mark in interstate commerce since February 25, 2021. Respondent’s <homecourtlending.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the HOMECOURTE LENDING mark in its entirety and merely deletes the letter “e” and adds the “.com” generic top-level domain (“gTLD”)
Respondent has no legitimate interests in the <homecourtlending.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the HOMECOURTE LENDING mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves a page with various links related to the goods and services offered by Complainant and its competitors.
Respondent registered and uses the <homecourtlending.com> domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Additionally, Respondent engaged in typo-squatting. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the HOMECOURTE LENDING mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that is engaged in the business of providing financial services.
2. Complainant has established its common law trademark rights in the HOMECOURTE LENDING and has shown that it has had those rights since at least February 25, 2021.
3. Respondent registered the <homecourtlending.com> domain name on September 28, 2021.
4. Respondent has caused the disputed domain name to resolve to a page with various links related to the goods and services offered by Complainant and its competitors.
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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The first question that arises
is whether Complainant has rights in a trademark or service mark on which it
may rely. Complainant
submits that it holds common law rights in the HOMECOURTE LENDING mark and does
not currently hold a trademark registration. Policy ¶ 4(a)(i) does not require
a complainant to own a registered trademark prior to a respondent’s
registration of a domain name if it can demonstrate established common law
rights in the mark. See Microsoft Corporation v. Story Remix / Inofficial, FA
1734934 (Forum July 10, 2017)
(finding that “The Policy does not require a complainant to own a registered
trademark prior to a respondent’s registration if it can demonstrate
established common law rights in the mark.”). To establish common law rights in
a mark, a complainant generally must prove that the mark has generated a
secondary meaning in the mark. See Goodwin Procter LLP v. Amritpal Singh,
FA 1736062 (Forum July 18, 2017)
(holding that the complainant demonstrated its common law rights in the GOODWIN
mark through evidence of “long time continuous use of the mark, significant
related advertising expenditures, as well as other evidence of the mark’s
having acquired secondary meaning.”). Here, Complainant provides evidence of
its use of the mark in interstate commerce. See Compl. Exhibit 3. The
evidence is that Complainant has offered and
rendered the services under the HOMECOURTE LENDING mark in interstate commerce
within the U.S. since at least as early as February 25, 2021. Complainant also
owns the homecourte.com and homecourtelending.com domain names. The former is
used in connection with certain financial services, among other things. A copy
of the homepage to which the homecourte.com domain name resolves is exhibited
and is attached as Exhibit 4. On the basis of that evidence the Panel finds
that Complainant does hold common law rights in the HOMECOURTE LENDING mark for
the purposes of Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s HOMECOURTE LENDING mark. Complainant argues that Respondent’s <homecourtlending.com> domain name is virtually identical and confusingly similar to Complainant’s HOMECOURTE LENDING mark as it contains the HOMECOURTE LENDING mark in its entirety, merely deleting the letter “e” and adding the “.com” gTLD. The deletion of a single letter in a disputed domain and the addition of a gTLD fails to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s HOMECOURTE LENDING mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
(a) Respondent has chosen to take Complainant’s HOMECOURTE LENDING trademark and to use it in its domain name, merely deleting the letter “e” which does not negate the confusing similarity between the domain name and the trademark;
(b) Respondent registered the <homecourtlending.com> domain name on September 28, 2021;
(c) Respondent has caused the disputed domain name to resolve to a page with various links related to the goods and services offered by Complainant and its competitors;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends Respondent lacks rights or legitimate interests in the <homecourtlending.com> domain name since Respondent is not commonly known by the disputed domain names and Complainant has not authorized or licensed to Respondent any rights in the HOMECOURTE LENDING mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Sabrina Gonzalez,” and there is no other evidence to suggest that Respondent was authorized to use the HOMECOURTE LENDING mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name instead resolves to a page displaying links related to the goods and services associated with Complainant and its competitors. Where the Respondent uses a domain name to redirect users to competing services, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Here, Complainant provides a screenshot of Respondent’s disputed domain name resolving to third party links. See Compl. Exhibit 7. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii);
(g) Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the <homecourtlending.com> domain name to pass itself off as Complainant. Where the respondent uses a disputed domain name to pass itself off as a complainant, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name). Here, Complainant provides screenshots of the disputed domain name being used by Respondent to pass itself off as Complainant See Compl. Exhibit 6. As the Panel agrees, it finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the <homecourtlending.com> domain name in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Where a respondent uses a disputed domain name to pass itself off as a complainant, the Panel may find evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods). As previously noted, Complainant provides screenshots of the website to which disputed domain name resolves being used by Respondent to pass itself off as Complainant. See Compl. Exhibit 6. As the Panel agrees, it finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii) or (iv).
Secondly, Complainant argues that Respondent registered and uses the <homecourtlending.com> domain name in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Use of a disputed domain name to redirect consumers to competing goods or services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”).; See also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). As previously noted, Complainant provides evidence of the disputed domain name’s website resolving to third party links. See Compl. Exhibit 7. Therefore, the Panel agrees and finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii) or (iv).
Thirdly, Complainant argues that Respondent engaged in typosquatting in bad faith. Typosquatting may act as independent evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant argues that Respondent’s deletion of the letter “e” in the HOMECOURTE LENDING mark constitutes typosquatting. As the Panel agrees, it finds bad faith pursuant to Policy ¶ 4(a)(iii).
Fourthly, Complainant argues that Respondent had knowledge of Complainant’s rights in the HOMECOURTE LENDING mark at the time of registering the <homecourtlending.com> domain name. The Panel will disregard arguments of bad faith based on constructive notice as prior UDRP decisions generally decline to find bad faith as a result of constructive knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel will determine whether Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”); see also iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this submission, Complainant points to its trademark registrations as well as its commercial presence and reputation. As such, the Panel determines that Respondent did have actual knowledge of Complainant’s right in its mark, which supports a finding of bad faith under Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <homecourtlending.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated : November 22, 2021
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