national arbitration forum

 

DECISION

 

Ocwen Financial Corporation v. Technology & Software Development

Claim Number: FA0905001261065

 

PARTIES

 

Complainant is Ocwen Financial Corporation (“Complainant”), represented by Halle B. Markus, of Arent Fox LLP, Washignton, D.C., USA.  Respondent is Technology & Software Development (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

 

The domain names at issue are <modifymyocwenmortgage.com> and <ocwenloanmodifications.com>, registered with Godaddy.com, Inc.

 

PANEL

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 5, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 6, 2009.

 

On May 5, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names.  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 May 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 28, 2009 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@modifymyocwenmortgage.com and postmaster@ocwenloanmodifications.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On June 3, 2009 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

 

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names are confusingly similar to Complainant’s OCWEN mark.

 

2.      Respondent does not have any rights or legitimate interests in the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names.

 

3.      Respondent registered and used the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

Complainant, Ocwen Financial Corporation, holds several registration of the OCWEN mark with the Unites States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,330,061 issued March 14, 2000) in connection with its financial services business.

 

Respondent registered the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names on September 13, 2008.  The websites resolving from the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names display links to third-party websites, some of which directly compete with Complainant’s business.  Respondent offered to sell the disputed domain names to Complainant for $2,500.

 

DISCUSSION

 

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has established rights in the OCWEN mark under Policy ¶ 4(a)(i) due to its registration of the mark with the USPTO.  See Metroolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).

 

The <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names include Complainant’s OCWEN mark, the generic top-level domain (gTLD) “.com,” and the phrase “modify my mortgage” or “loan modifications” respectively.  The Panel finds that the addition of a gTLD is irrelevant to an analysis under Policy ¶ 4(a)(i).  See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. 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.”).  Further, the Panel finds that the phrases added to Complainant’s OCWEN mark have an obvious relationship to Complainant’s financial services business.  See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”);  Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)).

 

Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Pursuant to Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names.  If the Panel finds that Complainant’s allegations establish such a prima facie case, the burden shifts to Respondent to show that it does indeed have rights or legitimate interests in the disputed domain names pursuant to the guidelines in Policy ¶ 4(c).  See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). 

 

The Panel finds that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate interests in the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names pursuant to Policy ¶ 4(a)(ii).  Because no response was submitted in this case, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain names.   However, the Panel will still examine the record in consideration of the factors listed in Policy ¶ 4(c).

 

The Panel finds no evidence in the record suggesting that Respondent is commonly known by the <modifymyocwenmortgage.com> or <ocwenloanmodifications.com> domain names.  Complainant asserts that Respondent has no license or agreement with Complainant authorizing Respondent to use the OCWEN mark, and the WHOIS information identifies Respondent as “Technology & Software Development.”  Thus, Respondent has not established rights or legitimate interests in the disputed domain names under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also America 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.”).

 

Respondent is using the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names to resolve to a website containing links to third-party websites, some of which directly compete with Complainant.  Accordingly, the Panel infers that Respondent receives click-through fees for displaying these hyperlinks.  The Panel finds that this constitutes a diversion of Internet users for Respondent’s commercial benefit, and therefore is not 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 ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also 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).”).

 

Additionally, the Panel finds that Respondent’s offer to sell the disputed domain names for $2,500 is further evidence that Respondent does not have any rights or legitimate interests in the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names pursuant to Policy ¶ 4(a)(ii).  See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent is using the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names to resolve to websites containing links to third-party websites, some of which directly compete with Complainant.  The Panel finds Respondent is using the disputed domain names to disrupt Complainant’s business by diverting Internet users to the websites of Complainant’s competitors.  This is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).

 

Because Respondent’s domain names are confusingly similar to Complainant’s OWCEN mark, Internet users accessing Respondent’s disputed domain name may become confused as to Complainant’s affiliation with the resulting websites.  Thus, Respondent’s use of the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <modifymyocwenmortgage.com> and <ocwenloanmodifications.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Bruce E. Meyerson, Panelist

Dated:  June 16, 2009

 

 

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