E-Loan Inc. v. Christopher Brennan
Claim Number: FA0806001203426
Complainant is E-Loan Inc. (“Complainant”), represented by Michael
W.O. Holihan, of Michael W.O. Holihan P.A.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eloan-s.com>, registered with GoDaddy.com, 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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
17, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 7, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <eloan-s.com> domain name is confusingly similar to Complainant’s E-LOAN mark.
2. Respondent does not have any rights or legitimate interests in the <eloan-s.com> domain name.
3. Respondent registered and used the <eloan-s.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, E-Loan Inc., is a Delaware-based corporation
offering a wide range of financial services including mortgages and loans. Complainant owns a trademark registration
with the United States Patent and Trademark Office (“USPTO”) for the E-LOAN
mark (Reg. No. 2,885,929 issued
Respondent registered the <eloan-s.com> domain name on
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.
The Panel finds that Complainant has established rights in
the E-LOAN mark for purposes of Policy ¶ 4(a)(i) through
its trademark registration with the USPTO.
See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Complainant contends that
Respondent’s <eloan-s.com> domain name is confusingly
similar to Complainant’s E-LOAN mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains
Complainant’s mark in its entirety, changes the placement of a hyphen, adds an
“s,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the misplacement of a
hyphen and the addition of a gTLD is irrelevant in distinguishing a disputed
domain name from a registered mark. See Health Devices Corp. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and legitimate interests in the <eloan-s.com> domain name. When Complainant makes a prima facie case in support of its allegations, the burden is shifted to Respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that in this case, Complainant has established a prima facie case. See 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).
Due to Respondent’s failure to respond to the Complaint, the
Panel may assume that Respondent lacks rights and legitimate interests in the
disputed domain name. See CMGI,
Inc. v. Reyes, D2000-0572 (WIPO
Complainant asserts that Respondent is neither commonly
known by the disputed domain name, nor licensed to register domain names using
the E-LOAN mark. Respondent’s WHOIS information identifies Respondent as
“Christopher Brennan,” and therefore lacks any apparent relationship to the
disputed domain name. Therefore, the
Panel finds that without affirmative evidence that the Respondent is commonly
known by the disputed domain name, the Panel concludes that Respondent
lacks all rights and legitimate interests in the disputed domain name pursuant
to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Complainant asserts that Respondent is using a confusingly similar domain name in order to attract Internet users to a website containing third-party links to websites in competition with Complainant. The Panel finds that intentionally diverting unknowing Internet users to a confusingly similar disputed domain name and offering links to competing websites is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of the <eloan-s.com>
to offer links to third-party websites in competition with Complainant is
evidence of bad faith. The Panel finds
that a registered domain name used primarily to disrupt the business prospects
of a competitor is an illustration of bad faith registration and use pursuant
to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO
Respondent’s use of the <eloan-s.com> domain name in order to intentionally attract Internet users to its website by creating a strong possiblity of confusion with Complainant’s E-LOAN mark and offering links to competing websites is further evidence of bad faith. The Panel infers that Respondent receives click-through fees for diverting Internet users to such websites. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad faith registration and use. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that ¶ 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 <eloan-s.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: July 28, 2008
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