Enhance Mortgage Corporation
and Templeton Mortgage Corporation v. Joseph Hayes
Claim Number: FA0910001287900
PARTIES
Complainant is Enhance Mortgage Corporation and
Templeton Mortgage Corporation (“Complainant”), represented by Jerry
W.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <enhancemtg.info> and <enhancemtg.net>,
registered with Godaddy.com, Inc.
PANEL
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.
Jonas Gulliksson as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On
On
A timely Response was received and determined to be complete on
On November 12, 2009, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Jonas Gulliksson as Panelist.
PROCEDURAL ISSUE
Complainant and Respondent are involved in
concurrent court proceedings. The Panel decides to proceed under the
UDRP despite concurrent court proceedings, because this administrative
proceeding under the Policy concerns only control of the Domain Name, not any
of the other remedies at issue in the federal litigation. It is not binding on the
court, and it does not preclude the prosecution of any claims, defenses, or
counterclaims in the court proceedings, see Western Florida Lighting v.
Ramirez, D2008-1122 (WIPO
PRELIMINARY ISSUES
Multiple Complainants
There are two named Complainants in this case: Enhance Mortgage Corporation
and Templeton Mortgage Corporation. According to the National Arbitration Forum’s
Supplemental Rule 1(e), it is permissible for two complainants to submit a
single complaint if they are multiple
persons or entities who have a sufficient nexus who can each claim to have
rights to all domain names listed in the Complaint.
In this case, Complainant Templeton Mortgage
Corporation owns the domain <enhancemtg.com>, which is used with
permission by Enhance Mortgage Corporation. As the domain <enhancemtg.com> is the sole
mark which the Complainant bases its Complaint on, one of the named
Complainants through use and one of the named Complainants through domain name registration,
the Panel finds that Complainants have sufficiently demonstrated an affiliation
for the purposes of the UDRP, and thus the Complaint may go forward with the
two named Complainants.
Non-UDRP Legal
Arguments
Complainant and Respondent each argue legal
points pursuant to
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant’s name is Enhance Mortgage Corporation and Templeton
Mortgage Corporation. Templeton Mortgage Corporation has operated the website, <enhancemtg.com>
since
The respondent has created two websites entitled <enhancemtg.info> and <enhancemtg.net>,
to (1) maliciously defame complainant, (2) confuse potential clients by
creating a website with a similar name, and (3) use complainant’s name for the
sole purpose of airing his complaints to the general public. The name Enhance Mortgage Corporation or
Enhance Mtg is synonymous with the purchase of owner-financed notes in the
mortgage industry. By creating the
website for the specific purpose of damaging complainant and confusing clients,
respondent is damaging the complainant in the amount of $5000.00 each week the
website continues to exist.
Before any notice from the Respondent of his problems with Complainant,
Respondent created <enhancemtg.info>
and <enhancemtg.net> to
intentionally dilute the trademark of Enhance Mortgage Corporation and its
website <enhancemtg.com>.
Respondent is not making a legitimate or fair use of the domain name,
and Respondent intends on obtaining personal gain to misleadingly divert
consumers or to tarnish the trademark or service mark at issue.
Respondent has registered the domain name primarily for the purpose of
disrupting the business of Enhance Mortgage Corporation.
By using the domain name, Respondent has intentionally attempted to
attract, for personal gain, Internet users to Respondent’s web site or other
on-line location, by creating a likelihood of confusion with their site and the
legitimate <enhancemtg.com>.
Further, Respondent intends to defame Complainant by making outrageous
and libelous commentary on the business practices of Enhance Mortgage
Corporation.
B. Respondent
Respondent is not a competitor with Complainant. The domain names <enhancemtg.info> and <enhancemtg.net> are comprised of
generic terms. Complainant is not famous.
Respondent has not intended to or tried to sell the domain names. The
purpose of owning them is for personal public non-competitive use. Respondent
is not profiting financially and Complainant is not losing financially to
Respondents site.
Complainant owns no trademark or service mark.
The domain names were not registered in bad faith, as they were registered
prior to Respondent’s knowledge of a law suit against him.
Respondent has only used one of the domain names to create a web site.
The web site is a self help web site called Enhance Man through God as
Respondent is a counselor. It has been used to warn others of the false and
deceptive business techniques of Complainant. It did not resemble Complainant’s
web site. It was not run for business purposes and produced no income of any
kind.
FINDINGS AND DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
Under
paragraph 4(a)(i) of the Policy, the Complainant must
demonstrate rights in the mark to which the disputed domain name is identical
or confusingly similar.
Complainant has not registered ENHANCEMTG.COM as a trademark. Complainant
has filed no evidence showing that they have registered the mark or a similar
mark in any
register of trade marks or trade names.
In order
to establish rights in an unregistered mark, Complainant must show that the
name has become a distinctive identifier associated with the Complainant and
its services; it must show evidence of goodwill and reputation in and to a
name. This can be established by showing use of the trademark in association
with its business for a number of years, or a rather extensive use of the mark,
prior to the registration of the domain name.
There is no provided evidence to support acquired
distinctiveness, other than registration information of <enhancemtg.com>
and a screen shot of <enhancemtg.com>. Complainant has failed to show that they have
established unregistered rights to the mark, see Kip
Cashmore v. URLPro, D2004-1023 (WIPO
Mar.14, 2005) , the Panel finding no common law rights where the complainant
did not present any credible evidence establishing acquired distinctiveness,
and Fobazo.com A/S v. Domain Group Germany/Peter Karlsberg, D2007-1277 (WIPO
As dispute resolution proceedings under the UDRP are purely
administrative, it is imperative that the parties present to the Panel, in
written form, all evidence they may wish to use to support their case.
Since the Complaint fails to meet the requirement of paragraph 4a (i) of
the Policy, it is not necessary to decide whether the Respondent has no rights
or legitimate interests in the domain names or if the domain names were
registered and used in bad faith.
DECISION
For all the
foregoing reasons, the Complaint is denied.
Jonas Gulliksson, Panelist
Dated: November 20, 2009
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