Household International, Inc. v. none
Claim Number: FA0212000139692
PARTIES
Complainant is Household International, Inc., Prospect Heights, IL, USA (“Complainant”) represented by Michael D. Warnecke, of Micahel Best & Friedrich LLC. Respondent is none, Merritt, BC, CANADA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <household-finance.com>, registered with Tucows, Inc.
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.
James P. Buchele as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 31, 2002; the Forum received a hard copy of the Complaint on December 31, 2002.
On January 2, 2003, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <household-finance.com> is registered with Tucows, Inc. and that Respondent is the current registrant of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows, 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 January 2, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 22, 2003 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@household-finance.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On January 28, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 <household-finance.com> domain name is confusingly similar to Complainant’s HOUSEHOLD FINANCE mark.
2. Respondent does not have any rights or legitimate interests in the <household-finance.com> domain name.
3. Respondent registered and used the <household-finance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Household International, Inc., is the leading provider of consumer loans and credit cards in the United States, Canada and the United Kingdom. Complainant holds numerous service mark registrations reflecting the HOUSEHOLD FINANCE, HOUSEHOLD, and HOUSEHOLD BANK marks (collectively, the “HOUSEHOLD Marks”). More specifically, Complainant holds the following registration numbers with the U.S. Patent and Trademark Office (“USPTO”): 878,902; 828,365; and 1,357,180.
Complainant and its predecessor-in-interest, Household Finance Corporation, have been in the business of providing financial services since at least as early as 1878. Complainant has utilized the HOUSEHOLD mark since at least as early as 1935, the HOUSEHOLD FINANCE mark since at least as early as 1940, and the HOUSEHOLD BANK mark since 1983.
Complainant’s HOUSEHOLD Marks have been extensively marketed throughout the United States and abroad, as Complainant has expended substantial time, effort and money in advertising, promoting and marketing its financial services. Additionally, Complainant’s services and corresponding HOUSEHOLD Marks are advertised and offered at Complainant’s websites, located at the following domain names: <householdfinance.com>, <household.com>, <hfc.com> and <householdloan.com>.
Respondent registered the <household-finance.com> domain name on October 3, 2001. Complainant’s investigation of Respondent’s use of the disputed domain name reveals that Respondent no longer uses the domain name in connection with any purpose. However, prior to the domain name’s inactivity, Respondent’s domain name resolved to a website that displayed a “Household Finance” mark at the top of the website advertising financial services closely related to Complainant’s services. Further, Complainant’s examination of Respondent’s use of the domain name indicates that, at various times, the domain name resolved to a website that conveyed Respondent’s religious beliefs.
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.
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 established rights in the HOUSEHOLD Marks through registration with the
USPTO, and subsequent continuous use of the Marks regarding Complainant’s
offering of financial services.
Respondent’s <household-finance.com> domain name is confusingly similar to Complainant’s HOUSEHOLD FINANCE mark. The subject domain name incorporates Complainant’s established service mark in its entirety, deviating only with the addition of a hyphen between the words that compose Complainant’s mark. Such slight variation fails to overcome Policy ¶ 4(a)(i)’s confusingly similar analysis. Further, because top-level domains (such as “.com”) are a required feature for domain name registrants, their presence fails to create any distinguishing characteristic. See Nat’l Cable Satellite Corp. v. Black Sun Surf Co., FA 94738 (Nat. Arb. Forum June 19, 2000) (holding that the domain name <cspan.net>, which omitted the hyphen from the trademark spelling, C-SPAN, is confusingly similar to Complainant's mark); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top-level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
As
stated, Respondent failed to submit a Response in this proceeding. Therefore,
Complainant’s assertions, and the inferences drawn from Complainant’s evidence,
have gone unopposed. Because Respondent neglected to submit a Response there is
a presumption that Complainant’s contentions are true unless clearly
contradicted by the evidence. See
Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding
that failing to respond allows a presumption that Complainant’s allegations are
true unless clearly contradicted by the evidence); see also Vertical Solutions Mgmt., Inc. v.
webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure
to respond allows all reasonable inferences of fact in the allegations of
Complainant to be deemed true).
By not
submitting a Response, Respondent has failed to invoke any circumstance that
could demonstrate rights or legitimate interests in the domain name. See Geocities v. Geociites.com, D2000-0326
(WIPO June 19, 2000) (finding that Respondent has no rights or legitimate
interest in the domain name because Respondent never submitted a response nor
provided the Panel with evidence to suggest otherwise).
Complainant’s
unrefuted evidence indicates that on November 5, 2002, Respondent’s website
used a “Household Finance” mark, identical to Complainant’s registered mark, in
order to advertise financial services in competition with Complainant’s
products. Although the disputed domain name no longer resolves to the aforementioned
website, it is not inconceivable that Respondent may eventually reactivate the
website. Respondent’s use of Complainant’s established HOUSEHOLD FINANCE mark
in the domain name fails to create rights or legitimate interests because
Respondent is opportunistically benefiting from the interest and goodwill
associated with Complainant’s mark. More specifically, Respondent is attempting
to ensnare unsuspecting Internet users into believing Complainant is affiliated
with the <household-finance.com> domain name, corresponding
website and financial services. Such diversionary use fails to establish rights
or legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii). See
Vapor Blast Mfg. Co. v. R & S
Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that
Respondent’s commercial use of the domain name to confuse and divert Internet
traffic is not a legitimate use of the domain name); see also Household Int’l, Inc. v. Cyntom Enter.,
FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (inferring that Respondent registered
the domain name <householdbank.com>, which incorporates Complainants
HOUSEHOLD BANK mark, with hopes of attracting Complainant’s customers and thus
finding no rights or legitimate interests).
The Panel has determined Respondent’s past use of the domain name
to be infringing. A past pattern of conduct often indicates future
propensities. Additionally, because Complainant has submitted a prima facie case
to the Panel, Respondent bears the burden of showing demonstrable preparations
to use the domain name in connection with a legitimate purpose. Even though
Respondent is currently not using the domain name in conjunction with any use
it must still proffer evidence of future legitimate use, especially in light of
its past infringing conduct. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(finding that once Complainant asserts that Respondent has no rights or
legitimate interests with respect to the domain name, the burden shifts to
Respondent to provide credible evidence that substantiates its claim of rights
and legitimate interests).
No evidence before the Panel suggests Respondent is commonly know
by the <household-finance.com> domain name, or any variation
thereof. Further, Complainant’s investigation of Respondent indicates that
Respondent has not acquired any trademark or service mark rights in the
disputed domain name. Therefore, Respondent fails to establish rights or
legitimate interests in the domain name under Policy ¶ 4(c)(ii).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been
satisfied.
Respondent’s bad faith registration and use of the <household-finance.com> domain name is articulated by Policy ¶ 4(b)(iv). Complainant has been damaged by Respondent’s registration and use of the subject domain name. Actual and potential customers seeking information about Complainant’s financial services are likely to attempt to access Respondent’s website, and will subsequently be redirected to websites offering competing products and services. Respondent registered the infringing domain name with the intent to capitalize on Complainant’s famous HOUSEHOLD Marks and services; thus, Respondent registered and used the <household-finance.com> domain name in bad faith. See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Respondent registered and used the domain name in bad faith; therefore, Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <household-finance.com> domain name be TRANSFERRED from Respondent to Complainant.
James P. Buchele, Panelist
Dated: February 3, 2003
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page