national arbitration forum

 

DECISION

 

Ocwen Financial Corporation v. Dezider Banga

Claim Number: FA1002001308450

 

PARTIES

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.

 

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.

 

Tyrus R. Atkinson, Jr., as Panelist.

 

PROCEDURAL HISTORY

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 postmaster@ocwenproperties.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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

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.

 

FINDINGS

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.

 

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

 

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 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).

 

Respondent’s <ocwenproperties.com> 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. 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 the generic term added to Complainant’s OCWEN mark has an obvious relationship to Complainant’s financial services business because Complainant offers mortgage services.  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.”);  see also 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)).  Since these alterations do not distinguish Respondent’s disputed domain name from Complainant’s mark, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). 

 

The Panel finds 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 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. 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 Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate interests in the <ocwenproperties.com> domain name pursuant to Policy ¶ 4(a)(ii).  Respondent has failed to submit a response in these proceedings and thus 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 <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 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 <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 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).”).

 

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

 

Registration and Use in Bad Faith

 

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, 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).

 

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. 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 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 <ocwenproperties.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Tyrus R. Atkinson, Jr., Panelist

Dated:  April 5, 2010

 

 

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