Enhance Mortgage Corporation and Templeton Mortgage Corporation v. Joseph Hayes
Claim Number: FA0910001287900
Complainant is Enhance Mortgage Corporation and
Templeton Mortgage Corporation (“Complainant”), represented by Jerry
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <enhancemtg.info> and <enhancemtg.net>, 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.
Jonas Gulliksson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
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.
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
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
Complainant requests that the domain names be transferred from Respondent to Complainant.
The Complainant’s name is Enhance Mortgage Corporation and Templeton
Mortgage Corporation. Templeton Mortgage Corporation has operated the website, <enhancemtg.com>
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.
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.
For all the foregoing reasons, the Complaint is denied.
Jonas Gulliksson, Panelist
Dated: November 20, 2009
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