OneWest Bank, FSB v. Xiaolei Wang
Claim Number: FA1312001534863
Complainant is OneWest Bank, FSB (“Complainant”), represented by B. Brett Heavner of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., Washington, D.C., USA. Respondent is Xiaolei Wang (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indymacmortgateservices.com>, registered with GODADDY.COM, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 16, 2013; the National Arbitration Forum received payment on December 16, 2013.
On December 17, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <indymacmortgateservices.com> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 17, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 2014 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@indymacmortgateservices.com. Also on December 17, 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 January 14, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant is a bank with customers throughout the United States. Complainant has approximately $14 billion in deposits and $25 billion in total assets. Complainant owns the trademark INDYMAC, used for financial services including mortgage-related services. This mark is the subject of various U.S. trademark registrations, and Complainant also claims common-law rights in the mark. Complainant and its predecessors in interest have used the INDYMAC mark since 1997. Through its division IndyMac Mortgage Services, Complainant services more than $16.5 billion of mortgage loans on behalf of third parties. Complainant uses various domain names for this purpose including <indymacmortgageservices.com>.
Complainant contends that the disputed domain name <indymacmortgateservices.com>, registered by Respondent on March 8, 2013, is confusingly similar to its INDYMAC mark. Complainant further contends that Respondent lacks rights or legitimate interests in the disputed domain name. In support thereof, Complainant alleges that Respondent is using the domain name for a commercial pay-per-click website featuring search categories that relate to Complainant’s mortgage business, and that this use does not constitute a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name under the Policy; that Respondent is not commonly known by the disputed domain name; and that Complainant has not authorized Respondent to use its INDYMAC mark.
Finally, Complainant contends that Respondent registered and is using the disputed domain name in bad faith. Complainant asserts that Respondent’s use of the domain name for a pay-per-click website containing advertisements for mortgage-related services represents an attempt to profit by creating a likelihood of confusing with Complainant’s mark; that Respondent’s use of the domain name in this manner disrupts Complainant’s business; that Respondent is engaged in bad faith “typo-squatting,” taking advantage of Internet users who mistype Complainant’s domain name; and that Respondent knew of Complainant’s rights prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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 disputed domain name combines Complainant’s INDYMAC trademark with the generic or descriptive phrase “mortgage services” (misspelled as “mortgate services”) and the top-level domain suffix “.com”. The addition of this phrase fails to distinguish the domain name from Complainant’s mark. See, e.g., OneWest Bank, FSB v. Zhichao Yang, FA 1509978 (Nat. Arb. Forum Aug. 28, 2013) (finding <indymacmortgagesevices.com> confusingly similar to INDYMAC). Accordingly, the Panel considers the disputed domain name to be confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark and corresponds exactly to Complainant’s <indymacmortgageservices.com> domain name, but for a minor typographical error; and the only apparent use of the domain name is in connection with a website seemingly calculated to create and exploit confusion among Internet users and infringe upon Complainant’s mark. See OneWest Bank, FSB v. Zhichao Yang, supra (finding lack of rights or legitimate interests based upon similar facts). Respondent has not come forward with any evidence of rights or legitimate interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s use of the domain name for a website containing pay-per-click links, presumably including links to Complainant’s competitors, is indicative of bad faith use under paragraph 4(b)(iv). See, e.g., OneWest Bank, FSB v. Zhichao Yang, supra. Absent any evidence that the domain name was registered for a different purpose, the Panel infers that the name was registered in bad faith as well. The fact that Respondent’s registration and use of the domain name are obvious attempts to take advantage of typographical errors by Internet users—a practice commonly referred to as “typosquatting”—lends further support to these conclusions. See id.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <indymacmortgateservices.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 15, 2014
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