Ocwen Financial Corporation v. Dezider Banga
Claim Number: FA1002001308450
Complainant is Ocwen Financial Corporation (“Complainant”), represented by Halle B. Markus, of Arent Fox LLP, Washington, D.C., USA. Respondent is Dezider Banga (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ocwenproperties.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 17, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 18, 2010.
On February 18, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <ocwenproperties.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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 February 19, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 11, 2010 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 22, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <ocwenproperties.com> domain name is confusingly similar to Complainant’s OCWEN mark.
2. Respondent does not have any rights or legitimate interests in the <ocwenproperties.com> domain name.
3. Respondent registered and used the <ocwenproperties.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ocwen Financial Corporation, operates in the financial services industry. Complainant holds several registrations of the OCWEN mark with the Unites States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,330,061 issued March 14, 2000) and uses these registrations in connection with marketing its financial services.
Respondent registered the <ocwenproperties.com> domain name on September 28, 2009. The website resolving from the <ocwenproperties.com> domain name displays 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.
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 provided evidence of the registration of its
OCWEN mark with the USPTO. The Panel
finds Complainant has established rights in the OCWEN mark under Policy ¶
4(a)(i) due to its registration of the mark with the USPTO (e.g., Reg. No. 2,330,061 issued March
14, 2000). See Metroolitan
Life Ins. Co. v. Bonds, FA
873143 (Nat. Arb. Forum
domain name contains Complainant’s OCWEN mark, the generic top-level domain
(gTLD) “.com,” and the descriptive term “properties.” The Panel finds 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.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
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 Complainant’s allegations establish such a prima facie case, the
burden shifts to Respondent to show it does 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.
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <ocwenproperties.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the OCWEN mark, and the WHOIS information identifies the registrant as “Dezider Banga.”
Therefore, the Panel finds, Respondent has not established rights or
legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Respondent is using the <ocwenproperties.com> domain name
to resolve to a website containing click-through links to third-party websites,
some of which directly compete with Complainant. The Panel finds Respondent’s use constitutes
a diversion of Internet users 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
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <ocwenproperties.com> domain name 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. The Panel concludes Respondent’s disruption
is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
Respondent’s disputed domain name resolves to a website
where click-through links to competing services are offered. Respondent presumably receives click-through
fees for this use of the disputed domain name.
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. Respondent is attempting to
profit from this confusion through the receipt of click-through fees. Therefore, the Panel finds Respondent’s use
of the <ocwenproperties.com>
domain name constitutes
bad faith registration and use under Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ocwenproperties.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 5, 2010
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