Ocwen Financial Corporation v. Jason Briggs / Modify Law
Claim Number: FA1210001466705
Complainant is Ocwen Financial Corporation (“Complainant”), represented by Amy E. Salomon of Arent Fox LLP, Washington, D.C., USA. Respondent is Jason Briggs / Modify Law (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ocwenmortgagemodification.us>, registered with GoDaddy.com, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 10, 2012; the National Arbitration Forum received payment on October 17, 2012. A hard copy of the Complaint was received on October 17, 2012.
On October 11, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <ocwenmortgagemodification.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On October 23, 2012, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 13, 2012 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 27, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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 <ocwenmortgagemodification.us> domain name is confusingly similar to Complainant’s OCWEN mark.
2. Respondent does not have any rights or legitimate interests in the <ocwenmortgagemodification.us> domain name.
3. Respondent registered and used the <ocwenmortgagemodification.us> domain name in bad faith.
B. Respondent failed to submit a timely Response in this proceeding.
Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the OCWEN mark (Reg. No. 2,330,061 registered March 14, 2000), OCWEN & Design mark (Reg. No. 2,333,474 registered March 21, 2000), OCWEN FINANCIAL CORPORATION mark (Reg. No. 2,330,062 registered March 14, 2000), and the OCWEN LOAN SERVICING marks (Reg. No. 3,670,997 registered August 18, 2009).
Respondent registered the <ocwenmortgagemodification.us> domain name on February 9, 2012, and uses it to direct Internet traffic to a commercial links page.
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 or 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.”).
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
The Panel finds that Complainant’s registration of its OCWEN family of trademarks with the USPTO is sufficient to establish rights in the marks under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under UDRP ¶ 4(a)(i)).
Respondent’s <ocwenmortgagemodification.us> domain name is confusingly similar to Complainant’s marks because it fully incorporates Complainant’s OCWEN mark and adds the generic terms “mortgage modification.” The Panel finds that the addition of generic/descriptive terms “mortgage” and “modification” does not distinguish Respondent’s disputed domain name from Complainant’s marks. See 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 UDRP ¶ 4(a)(i)). The Panel also finds that the addition of a ccTLD such as “.us” is irrelevant to a Policy ¶ 4(a)(i) analysis. See CDW Computer Ctrs., Inc. v. The Joy Co., FA 114463 (Nat. Arb. Forum July 25, 2002) (finding that the addition of the ccTLD “.us” is inconsequential and does not defeat a claim of confusing similarity). Thus, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s OCWEN marks.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant first asserts that there is no evidence that Respondent owns any trademark or service mark rights or registrations that are identical, similar, or related to the disputed domain name. Thus, the Panel finsd that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name).
Complainant also argues that Respondent is not commonly known by the disputed domain name, as the WHOIS information identifies “Jason Briggs/Modify Law” as the registrant. Complainant contends that it has not licensed or authorized Respondent to register or use any domain name incorporating any of the OCWEN marks. The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See 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).
Complainant contends that Respondent is using the disputed domain name in connection with a website that promotes services in direct competition with the mortgage and loan services provided by Complainant. The Respondent’s website features several pay-per-click links under headings such as “Obama Modification,” or “Chase Mortgage-Apply.” The Panel finds that this is not a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) or Policy ¶ 4(c)(iv). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has registered and is using the disputed domain name in bad faith, though the Panel notes that under the usDRP Complainant only has to prove that the disputed domain name was registered or used in bad faith.
Complainant provides proof that Respondent has engaged in pattern of cybersquatting by registering multiple domain names that incorporate the registered trademarks of well-known financial institutions, for which Respondent presumably receives “click through” fees from the resultant pay-per-click websites. The trademark certificates provided, in conjunction with the WHOIS printouts for the domain names registered to Respondent, are evidence of a pattern of bad faith domain name registrations under Policy ¶ 4(b)(ii). See Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to UDRP ¶ 4(b)(ii)).
Respondent is using the disputed domain name to direct Internet traffic to a website featuring various third-party links to Complainant’s competitors in the financial services industry, no doubt for profit. The Panel finds that Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv), by intentionally attempting to attract, for commercial gain, Internet users by creating a likelihood of confusion with Complainant’s mark. 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 [UDRP] ¶ 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.’”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ocwenmortgagemodification.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 4, 2012
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