HomeVestors of America, Inc. v. Freedomsoft LLLP
Claim Number: FA1109001406783
Complainant is HomeVestors of America, Inc. (“Complainant”), represented by Darin M. Klemchuk of Klemchuk Kubasta LLP, Texas, USA. Respondent is Freedomsoft LLLP (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <webuyuglyhousesphoenix.com>, registered with Internet.bs Corp.
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 September 9, 2011; the National Arbitration Forum received payment on September 9, 2011.
On September 12, 2011, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <webuyuglyhousesphoenix.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. registration agreement and has thereby agreed to resolve domain disputes brought by third-parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 14, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 4, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@webuyuglyhousesphoenix.com. Also on September 14, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 11, 2011, 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <webuyuglyhousesphoenix.com> domain name is confusingly similar to Complainant’s WE BUY UGLY HOUSES mark.
2. Respondent does not have any rights or legitimate interests in the <webuyuglyhousesphoenix.com> domain name.
3. Respondent registered and used the <webuyuglyhousesphoenix.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, HomeVestors of America, Inc., purchases, rehabilitates, and sells houses under its WE BUY UGLY HOUSES mark. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its WE BUY UGLY HOUSES mark (e.g., Reg. No. 3,099,814 registered June 6, 2006).
Respondent, Freedomsoft LLLP, registered the <webuyuglyhousesphoenix.com> domain name on November 25, 2011. The disputed domain name resolves to a website containing an error message and an e-mail address hyperlink relating to Respondent, which provides real estate investing software.
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.
As Complainant owns multiple trademark registrations with the USPTO for its WE BUY UGLY HOUSES mark (e.g., Reg. No. 3,099,814 registered June 6, 2006), the Panel finds that Complainant has established Policy ¶ 4(a)(i) rights in the mark. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); 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 <webuyuglyhousesphoenix.com> domain name contains Complainant’s entire mark, absent the spaces, and simply combines the mark with the geographic term “phoenix” and the generic top-level domain (“gTLD”) “.com.” As the Panel finds that these alterations fail to adequately distinguish the disputed domain name, the Panel holds that Respondent’s <webuyuglyhousesphoenix.com> domain name is confusingly similar to Complainant’s WE BUY UGLY HOUSES mark pursuant to Policy ¶ 4(a)(i). See Ticketmaster Corp. v. Kumar, FA 744436 (Nat. Arb. Forum Aug. 17, 2006) (finding that the <indiaticketmaster.com> domain name was confusingly similar to the complainant’s TICKETMASTER mark); see also Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”).
The Panel finds Policy ¶ 4(a)(i) is satisfied.
Complainant has contended that Respondent does not have any rights or legitimate interests in the <webuyuglyhousesphoenix.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint).
Complainant has not authorized Respondent to use Complainant’s WE BUY UGLY HOUSES mark. The WHOIS information identifies the domain name registrant as “Freedomsoft LLLP,” which is not similar to the disputed domain name. As Respondent has failed to contradict Complainant’s assertion and the WHOIS information, the Panel concludes that Respondent is not commonly known by the <webuyuglyhousesphoenix.com> domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”).
Respondent’s <webuyuglyhousesphoenix.com> domain name resolves to a website that states:
Oops…our apologies! It seems that you have landed on this page due to an error.
If you are a Freedomsoft customer attempting to view your buyer or seller site, this is a key indicator that your dns records are not setup correctly. Please ensure that you have created the correct ‘A’ records in your dns configuration for your host (i.e. Godaddy.com).
We’re very sorry for the inconvenience. If you’d like to contact support, please email [sic] support@freedomsoft.com.
Respondent is a supplier of real estate investing software, according to Complainant’s exhibits, and provides websites for real estate investors. This use, while related to Complainant, does not directly compete with Complainant because Complainant does not provide websites. The Panel chooses to treat the resolving website as unrelated to Complainant’s business in the sense that the resolving website does not compete with Complainant’s business. The Panel finds that Respondent is making neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <webuyuglyhousesphoenix.com> domain name. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA 100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate interests in the disputed domain name where the respondent was using the complainant’s mark to redirect Internet users to a website offering credit card services unrelated to those services legitimately offered under the complainant’s mark).
The Panel finds Policy ¶ 4(a)(ii) is satisfied.
As the Panel noted above, Respondent is not a direct competitor of Complainant, but Respondent did register and use the disputed domain name for the purpose of attracting Internet users to its website by creating confusion as to Complainant’s affiliation with the disputed domain name. The Panel presumes that Respondent likely profits from increased traffic to the website. Thus, the Panel concludes that Respondent registered and uses the <webuyuglyhousesphoenix.com> domain name in bad faith under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
The Panel finds Policy ¶ 4(a)(iii) is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <webuyuglyhousesphoenix.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: October 24, 2011
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