LENDING TREE, LLC v. Domain Dotter
Claim Number: FA1201001423813
Complainant is LENDING TREE, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain Dotter (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <lendingtrwee.com>, <lendingtrere.com>, <lendingntree.com>, <lendingtrewe.com>, and <lendimngtree.com>, registered with Wild West Domains, 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 10, 2012; the National Arbitration Forum received payment on January 10, 2012.
On January 11, 2012, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <lendingtrwee.com>, <lendingtrere.com>, <lendingntree.com>, <lendingtrewe.com>, and <lendimngtree.com> domain names are registered with Wild West Domains, Inc. and that Respondent is the current registrant of the names. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, Inc. 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 January 11, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2012 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@lendingtrwee.com, postmaster@lendingtrere.com, postmaster@lendingntree.com, postmaster@lendingtrewe.com, and postmaster@lendimngtree.com. Also on January 11, 2012, 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 February 2, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lendingtrwee.com>, <lendingtrere.com>, <lendingntree.com>, <lendingtrewe.com>, and <lendimngtree.com> domain names are confusingly similar to Complainant’s LENDINGTREE mark.
2. Respondent does not have any rights or legitimate interests in the <lendingtrwee.com>, <lendingtrere.com>, <lendingntree.com>, <lendingtrewe.com>, and <lendimngtree.com> domain names.
3. Respondent registered and used the <lendingtrwee.com>, <lendingtrere.com>, <lendingntree.com>, <lendingtrewe.com>, and <lendimngtree.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lending Tree, LLC, is a business of Tree.com, Inc., an online lending marketplace that matches borrowers with lenders. Complainant owns numerous trademarks with the United States Patent and Trademark Office (“USPTO”) for its LENDINGTREE mark (e.g., Reg. No. 2,265,733 registered July 27, 1999).
Respondent, Domain Dotter, registered the <lendingtrwee.com>, <lendingtrere.com>, <lendingtrewe.com>, and <lendimngtree.com> domain names on July 2, 2007 and <lendingntree.com> on April 4, 2007. The disputed domain names resolve to identical websites displaying hyperlinks to businesses in competition with Complainant’s business.
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 owns several trademark registrations with the USPTO for its LENDINGTREE mark (e.g., Reg. No. 2,265,733 registered July 27, 1999). The Panel determines that Complainant has ascertained rights in the LENDINGTREE mark under Policy ¶ 4(a)(i) by registering the mark with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also 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.”). The Panel also finds that trademark registration is not necessary in the same country where Respondent is located for the purposes of Policy ¶ 4(a)(i). See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant argues that the disputed domain names are confusingly similar to the LENDINGTREE mark. Complainant contends that misspelling the LENDINGTREE mark and adding the generic top-level domain (“gTLD”) “.com” render the domain names confusingly similar to Complainant’s mark and create an unauthorized affiliation with Complainant’s business. The Panel finds that misspelling the mark and adding the gTLD “.com” does not sufficiently distinguish the disputed domain names from the LENDINGTREE mark under Policy ¶ 4(a)(i). See Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding that the <zamazon.com> domain name was confusingly similar to the complainant’s AMAZON.COM mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant argues that Respondent does not possess any rights or legitimate interests in the disputed domain names. Pursuant to Policy ¶ 4(a)(ii), Complainant is burdened with establishing a prima facie case that Respondent lacks rights and legitimate interests in the domain names. After Complainant has satisfied this requirement, the burden then shifts to Respondent to demonstrate why it does have rights or interests in the domain name. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech. Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”); see also SEMCO Prods., LLC v. dmg world media (uk) ltd, FA 913881 (Nat. Arb. Forum Apr. 9, 2007) (concluding that under Policy ¶ 4(a)(ii) and the factors listed in Policy ¶ 4(c), a complainant must first make a prima facie case that the respondent has not used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, that the respondent is not commonly known by the disputed domain name, and that the respondent is not making a legitimate noncommercial or fair use of the disputed domain name before the burden shifts to the respondent to show otherwise). The Panel concludes that Complainant has satisfied the burden of making a prima facie case. Due to Respondent’s failure to reply to the proceedings, the Panel may assume Respondent does not possess any rights or legitimate interests in the disputed domain names. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). However, the Panel will examine the record to determine if Respondent owns rights and legitimate interests in the domain name under Policy ¶ 4(c).
Complainant argues that Respondent neither is commonly known by the disputed domain name nor have license, authorization, or permission to use the mark. The WHOIS information identifies the domain name registrant as “Domain Dotter,” which does not support the conclusion that Respondent is commonly known by the disputed domain name. Respondent does not present any further evidence that would show it is commonly known by the disputed domain name. Thus, the Panel concludes that Respondent is not commonly known by the disputed domain names and does not have rights and legitimate interests in them pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant argues that Respondent’s use of the disputed domain name is not connected with any bona fide offering of goods or services under Policy ¶ 4(c)(i) and that Respondent is not making a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). The domain names resolve to websites that are virtually identical, all displaying various links to businesses in competition with Complainant’s business. Complainant contends that Respondent commercially benefits from these links when clicked on by visitors to the websites. The Panel concludes that such use of domain names to direct Internet users to Respondent’s website for commercial profit does not amount to 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. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
Complainant argues that Respondent’s use of the disputed domain names demonstrates “typosquatting” in violation of Policy ¶ 4(a)(ii). Complainant contends that Respondent registered intentionally misspelled varieties of Complainant’s LENDINGTREE mark to take advantage of consumers who attempt to access Complainant’s website but inadvertently misspell the mark. The Panel finds that Respondent has engaged in typosquatting, which is evidence that Respondent lacks legitimate rights and interests in the disputed domain names under Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has established a pattern of bad faith registration of domain names to prevent the holder of the associated mark from using the domain name. Respondent’s registration of the multiple domain names within a small time frame indicate an intention to prevent Complainant from registering its mark in a corresponding domain name. The Panel concludes that Respondent’s multiple registration of similar domain names is evidence of a bad faith pattern, which shows Respondent’s bad faith registration and use of the disputed domain names under Policy ¶ 4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also EPA European Pressphoto Agency B.V. v. Wilson, D2004-1012 (WIPO Feb. 9, 2005) (finding that the respondent’s registration of the <epa-photo.com>, <epaphoto.com> and <epaphotos.com> domain names was sufficient to constitute a pattern pursuant to Policy ¶ 4(b)(ii)).
Complainant argues that Respondent’s use of the disputed domain names disrupts Complainant’s business. The domain names resolve to pages offering hyperlinks which correspond to websites whose businesses are in competition with Complainant’s business. The Panel concludes that such use of the disputed domain names demonstrates bad faith registration and use under Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant argues that Respondent’s use of the disputed domain names to intentionally misdirect Internet traffic to the corresponding website for commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). By attracting Internet users to its website Respondent creates confusion as to the relationship between Complainant’s LENDINGTREE mark and the disputed domain names, and as a result, Respondent earns a profit on the pay-per-click links displayed for consumers to click on. The Panel finds that Respondent’s use of the disputed domain names to attract and confuse Internet users and make a profit from the misdirection shows bad faith registration and use under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
Complainant argues that Respondent’s registration and use of the disputed domain names constitute bad faith because the misspelled names create a likelihood of confusion with Complainant’s mark, constituting typosquatting. The Panel finds that Respondent’s intentional misspelling of words with the purpose of intercepting consumers from reaching Complainant’s website amounts to bad faith registration and use under Policy ¶ 4(a)(iii). See Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy.”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that 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 <lendingtrwee.com>, <lendingtrere.com>, <lendingntree.com>, <lendingtrewe.com>, and <lendimngtree.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: February 15, 2012
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