Preferred Home Buyers Network, Inc. v. Ben Sharpe
Claim Number: FA1302001484332
Complainant is Preferred Home Buyers Network, Inc. (“Complainant”), represented by James A. Wahl, Minnesota, USA. Respondent is Ben Sharpe (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homescouting.net>, registered with NETWORK SOLUTIONS, LLC.
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 A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2013; the National Arbitration Forum received payment on February 8, 2013.
On February 11, 2013, NETWORK SOLUTIONS, LLC. confirmed by e-mail to the National Arbitration Forum that the <homescouting.net> domain name is registered with NETWORK SOLUTIONS, LLC. and that Respondent is the current registrant of the name. NETWORK SOLUTIONS, LLC. has verified that Respondent is bound by the NETWORK SOLUTIONS, LLC. 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 February 15, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 7, 2013 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@homescouting.net. Also on February 15, 2013, 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 March 21, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <homescouting.net> domain name, the domain name at issue, is confusingly similar to Complainant’s HOME SCOUTING mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Preferred Home Buyers Network, Inc., is a well-known provider of business marketing and consulting services and real estate information in the real estate industry throughout the United States. Complainant is the owner of a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the HOME SCOUTING mark (Reg. No. 3,122,826, filed January 5, 2005, registered August 1, 2006).
Respondent’s <homescouting.net> domain name is identical to Complainant’s registered HOME SCOUTING mark. There appears no evidence that Respondent has ever been known by the name <homescouting.net> or the name Home Scouting. Respondent is using a domain name identical to Complainant’s mark as bait to attract customers and has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark. It is clear that Respondent is aware of Complainant and its rights in the infringing domain name. The <homescouting.net> domain name was registered by Respondent on February 17, 2006.
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.”).
Complainant, Preferred Home Buyers Network, Inc., is a well-known provider of business marketing and consulting services and real estate information in the real estate industry throughout the United States. Complainant is the owner of a trademark registration with the USPTO for the HOME SCOUTING mark (Reg. No. 3,122,826, filed January 5, 2005, registered August 1, 2006). Respondent appears to reside within the United States. Therefore, the Panel finds that Complainant’s registration of the HOME SCOUTING mark with the USPTO is sufficient to show its rights in the mark pursuant to Policy ¶ 4(a)(i) dating back to January 5, 2005, the date on which Complainant filed its trademark application. 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 Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”).
Respondent’s <homescouting.net> domain name is identical to Complainant’s registered HOME SCOUTING mark. Absent the top-level domain, Respondent’s <homescouting.net> domain name is identical to Complainant’s registered domain name <homescouting.com>. Respondent removes the space in Complainant’s mark between HOME and SCOUTING and adds the generic top-level domain (“gTLD”) “.net.” The removal of a space and the addition of a gTLD is insufficient to distinguish Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”). Accordingly, Respondent’s <homescouting.net> domain name is identical to Complainant’s registered HOME SCOUTING mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then 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.”).
There is no evidence in the record that Respondent has ever been known by the name <homescouting.net> or the name Home Scouting. The WHOIS information identifies “Ben Sharpe” as the registrant of the disputed domain name.
Respondent has not provided any additional evidence showing that it is known by the disputed domain name. Thus, the Panel determines that Respondent is not commonly known by the disputed domain name under 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).
Respondent is not entitled to use a domain name identical to Complainant’s mark as bait to attract customers. Respondent’s disputed domain name resolves to a website titled “Home Scouting in Spokane” and offers an emailed report of real estate listings. In Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002), the panel found that the use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services. Consequently, Respondent’s use of the disputed domain name for a use that competes with Complainant is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
It appears that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark. The Panel notes that Respondent’s disputed domain name resolves to a website titled “Home Scouting in Spokane” and offers an emailed report of real estate listings. Accordingly, the Panel finds that Respondent is using the disputed domain name to intentionally attract Internet users to its website for its own commercial gain, and that Respondent registered and is using the disputed domain name in bad faith according to Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).
In light of the use of the website associated with the disputed domain name, it appears that Respondent is aware of Complainant and its rights in the HOME SCOUTING mark. The banner headline on the website reads “Home Scouting in Spokane,” which is enough to cause consumer confusion. The Panel finds that Respondent had actual knowledge of Complainant's mark and rights and, therefore, determines that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <homescouting.net> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 27, 2013
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