IndyMac Bank F.S.B. v. Tom Krug
Claim Number: FA0712001119759
Complainant is IndyMac Bank F.S.B. (“Complainant”), represented by B.
Brett Heavner, of Finnegan,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <seniorloantown.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 17, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 18, 2007.
On December 17, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <seniorloantown.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 10, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@seniorloantown.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 23, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <seniorloantown.com> domain name is confusingly similar to Complainant’s LOANTOWN mark.
2. Respondent does not have any rights or legitimate interests in the <seniorloantown.com> domain name.
3. Respondent registered and used the <seniorloantown.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, IndyMac Bank F.S.B., is a wholly-owned subsidiary of IndyMac Bancorp, Inc., which is a publicly traded company with approximately $29 billion in assets. Complainant is a leading mortgage lender and operates nation-wide. Complainant services approximately $156 billion of mortgage loans. Since 1998, Complainant has operated under the LOANTOWN mark (Reg. No. 2,269,565 issued August 10, 1999), which was registered with the United States Patent and Trademark Office (“USPTO”). Since 2001, Complainant has owned and operated the <loantown.com> domain name, which resolves Internet users to Complainant’s main website at the <indymacbank.com> domain name.
Respondent registered the <seniorloantown.com> domain name on June 6, 2007. Respondent is currently using the disputed domain name to resolve to a website which displays sponsored links to Complainant’s 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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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 established rights in the LOANTOWN mark through registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <seniorloantown.com> domain name incorporates Complainant’s entire LOANTOWN mark while merely adding the generic term “senior” and the generic top-level domain “.com.” Generally, the addition of generic terms and top-level domains do not render a disputed domain name distinct from a Complainant’s mark for the purposes of a Policy ¶ 4(a)(i) analysis. In this case, the disputed domain name’s dominant feature remains Complainant’s LOANTOWN mark. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the <seniorloantown.com> domain name. Once Complainant has established a prima facie case supporting its allegations, as it has in this case, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent has failed to respond to the Complaint, thus the Panel may conclude that Respondent lacks rights and legitimate interests in the disputed domain name. See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). However, the Panel will examine all evidence in the record to determine if Respondent does have rights or legitimate interests pursuant to Policy ¶ 4(c).
Respondent is currently using the disputed domain name to resolve to a website that features links to Complainant’s competitors. Respondent presumably receives referral fees from the advertisers listed on the website. Therefore, the Panel finds that such use does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website).
There is no evidence in the record, including the WHOIS
domain name registration information, to conclude that Respondent is commonly
known by the <seniorloantown.com>
domain name. The Panel therefore finds
that Respondent lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding
that the respondent does not have rights in a domain name when the respondent
is not known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration
information, Respondent is not commonly known by the [<awvacations.com>]
domain name.”).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s <seniorloantown.com> domain name resolves to a website that features links to Complainant’s competitors. The Panel therefore finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii), as Respondent primarily intended to disrupt Complainant’s business. See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
Respondent is using the <seniorloantown.com>
domain name to resolve to a website that features links to Complainant’s
competitors. Respondent presumably
receives referral fees from advertisers listed on Respondent’s website. By incorporating Complainant’s entire
LOANTOWN mark within the disputed domain name, Respondent has created a
likelihood of confusion with Complainant’s mark as to the source and
affiliation of the disputed domain name that resolves to the corresponding
website. The Panel therefore finds that
Respondent’s commercial use of the disputed domain name constitutes bad faith
registration and use pursuant to Policy ¶ (4)(b)(iv). See Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”); see also Perot Sys. Corp. v.
Perot.net, FA 95312 (Nat. Arb.
Forum Aug. 29, 2000) (finding bad faith where the domain name in question is
obviously connected with the complainant’s well-known marks, thus creating a
likelihood of confusion strictly for commercial gain).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <seniorloantown.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: February 5, 2008
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