Ocwen Financial Corporation v. ABOVE.COM PTY LTD.
Claim Number: FA1210001466061
Complainant is Ocwen Financial Corporation (“Complainant”), represented by Amy E. Salomon of Arent Fox LLP, Florida, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wwwocwenmdlsettlement.com> and <ocwenmdsettlement.com>, registered with ABOVE.COM PTY LTD.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 5, 2012; the National Arbitration Forum received payment on October 5, 2012.
On October 10, 2012, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <wwwocwenmdlsettlement.com> and <ocwenmdsettlement.com> domain names are registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the names. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. 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 October 11, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 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@wwwocwenmdlsettlement.com, and postmaster@ocwenmdsettlement.com. Also on October 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 November 9, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant, Ocwen Financial Corporation, is one of the largest providers of business process outsourcing services for the financial services industry in the United States. Complainant is also one of the largest non-prime mortgage loan servicers and an industry-leading real estate and technology service provider.
Complainant owns several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the OCWEN (Reg. No. 2,330,061 registered March 14, 2000); OCWEN & Design (Reg. No. 2,333,474, registered March 21, 2000); OCWEN FINANCIAL CORPORATION (Reg. No. 2,330,062, registered March 14, 2000); and OCWEN LOAN SERVICING marks (Reg. No. 3,670,997, registered August 18, 2009).
Respondent’s <wwwocwenmdlsettlement.com> and <ocwenmdsettlement.com> domain names are identical or confusingly similar to Complainant’s OCWEN marks.
Merely adding the prefix “www”, the letters “mdl” or “md” and the generic term “settlement” to the OCWEN mark does not distinguish the disputed domain names from Complainant’s OCWEN mark. Moreover, the addition of the generic top-level domain (“gLTD”) “.com” does not mitigate the use of Complainant’s OCWEN mark.
Respondent has no rights or legitimate interests in the disputed domain names.
Respondent is not commonly known by the disputed domain names. The WHOIS information identifies “Above.com Domain Privacy” as the registrant. Respondent is not licensed or authorized to use Complainant’s OCWEN mark. Respondent has listed the disputed domain names for sale through the online auction service at <sedo.com>. Respondent is not making legitimate noncommercial or fair use of, nor a bona fide offering of goods or services in connection with the disputed domain names. Respondent is using the dispute domain names in connection with websites that promote services in direct competition with the mortgage and loan services provided by Complainant.
Respondent registered and is using the disputed domain names in bad faith.
Respondent has listed the disputed domain names for sale through the online auction service located at <sedo.com>.
Respondent has engaged in typosquatting by adding the prefix “www” to Complainant’s OCWEN mark. Respondent has attempted to profit from its registration of the disputed domain names by offering links to competing mortgage and loan services.
Complainant presumes that Respondent is using the disputed domain names to collect “click-through” fees from the hyperlinks that appear on the websites that resolve from the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns trademark registrations with the USPTO for its OCWEN mark and related trademarks.
Respondent registered the at-issue domain name after Complainant acquired rights in the OCWEN mark.
Respondent is not authorized to use Complainant’s trademark.
The websites addressed by the at-issue domain names each display pay-per-click links.
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."
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.
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.”).
The at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant demonstrates its rights in the OCWEN mark under Policy ¶ 4(a)(i) by showing it registered such mark with the USPTO. It is insignificant that Respondent may be located outside of the USPTO’s jurisdiction. 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 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).
Respondent’s <wwwocwenmdlsettlement.com> and <ocwenmdsettlement.com> domain names are each confusingly similar to Complainant’s OCWEN mark. The addition of the prefix “www”, the letters “mdl” or “md,” and the generic term “settlement” does not distinguish the at-issue domain names from Complainant’s “OCWEN” mark for the purposes of the paragraph 4(a)(1) of the Policy. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Am. Online, Inc. v. Tullo, FA 150811 (Nat. Arb. Forum Apr. 15, 2003) (finding that the <3daol.com> domain name is confusingly similar to the complainant’s AOL mark because “…the addition of the prefix ‘3d’ does nothing to ‘distinguish’ Respondent’s domain name from Complainant’s registered trademarks”); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). It is well-settled that adding “.com” does not eliminate the confusing similarity between the disputed domain names and Complainant’s mark. See Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Nat. Arb. Forum Sept. 6, 2007) (“Furthermore, the addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names.”).
Respondent lacks both rights and legitimate interests in respect of each of the at‑issue domain names. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of either of the at‑issue domain names.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and there is no evidence, pursuant to Policy 4(c), supporting a finding that Respondent has rights or interests in either at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies the registrant of the at-issue domain names as “Above.com Domain Privacy.” Additionally, there is no evidence that tends to prove that notwithstanding the aforementioned WHOIS record Respondent is otherwise commonly known by the at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by either the <wwwocwenmdlsettlement.com> or the <ocwenmdsettlement.com>domain name for the purposes of Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, the at-issue domain names are used by Respondent to advertise links to third party entities. Some of the links are to websites that promote services in direct competition with the mortgage and loan services provided by Complainant. Respondent’s use of the at-issue domain names in this manner is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. 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)). Additionally, the fact that Respondent listed the domain names for sale through the online auction service at <sedo.com> is additional evidence that Respondent lacks rights and legitimate interests in respect the at-issue domain names under Policy ¶¶ 4(c)(i),4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“UDRP precedent is clear that auctioning domains does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the each of the at-issue domain names pursuant to Policy ¶4(a)(ii).
The at‑issue domain names were each registered and used in bad faith. As discussed below, Policy ¶4(b) bad faith circumstances are present and there is additional non-Policy ¶4(b) evidence from which the Panel may conclude that Respondent acted in bad faith under Policy ¶4(a)(iii) concerning the domain names.
Respondent has listed the at-issue domain names for sale through the online auction service located at <sedo.com>. Offering domain names for sale in this manner has been found to be evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale).
As mentioned elsewhere, Respondent has attempted to profit from its registration of the disputed domain names by offering links to competing mortgage and loan services. In doing so, Respondent capitalizes on the confusion created by the domain names’ similarity to Complainant’s trademark. Such use of the domain names is disruptive to Complainant’s business and constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
As also mentioned elsewhere herein, Respondent is apparently using the disputed domain names to collect “click-through” fees via hyperlinks appearing on the at-issue domain names’ websites. Respondent intends to impermissibly benefit from the confusion created by the domain names’ similarities to Complainant’s trademark. These circumstances constitutes bad faith registration and use under Policy 4 ¶ (b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Finally, the Panel finds that Respondent registered the at-issue domain names with actual knowledge of Complainant’s trademark rights in the OCWEN mark. Respondent’s use of the confusingly similar domain names, each containing Complainant’s unique OCWEN mark as its dominant feature, to host commercial websites is compelling evidence of Respondent’s prior knowledge of Complainant’s rights in the OCWEN mark. Respondent’s use of the domain names in this manner suggests no plausible explanation as to why Respondent registered the confusingly similar domain names other than that Respondent desired to use the domain names to impermissibly take advantage of Complainant’s goodwill therein. See Unisys Corp. v. Unisys Consulting, LLC, D2004-0138 (WIPO, Apr. 15, 2004) (finding the respondent had knowledge of the complainant’s mark based on the wide recognition of the complainant’s mark, as well as the complainant’s registration and use of its mark). Registering and using domain names with actual knowledge of another’s rights in a trademark that is confusingly similar to such domain names indicates bad faith pursuant to Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwocwenmdlsettlement.com> and <ocwenmdsettlement.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 11, 2012
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