HomeVestors of America, Inc. v. kevin crudup / KACEI Properties LLC
Claim Number: FA1402001544112
Complainant is HomeVestors of America, Inc. (“Complainant”), represented by Darin M. Klemchuk of Klemchuk Kubasta LLP, Texas, USA. Respondent is kevin crudup / KACEI Properties LLC (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <webuyuglyhousesinfl.com>, registered with Tucows, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 18, 2014; the National Arbitration Forum received payment on February 18, 2014.
On February 18, 2014, Tucows, Inc. confirmed by e-mail to the National Arbitration Forum that the <webuyuglyhousesinfl.com> domain name is registered with Tucows, Inc. and that Respondent is the current registrant of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows, 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 February 20, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 12, 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@webuyuglyhousesinfl.com. Also on February 20, 2014, 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 19, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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
a. Complainant offers low-cost franchising opportunities to investors seeking to enter the real estate business, and its franchisees go on to buy homes that are hard to sell and pay cash to owners who are in difficult situations. Complainant’s franchisees rehabilitate the houses, and then sell or lease the homes.
b. Complainant is the number one buyer of houses in the United States, and has operated under the WE BUY UGLY HOUSES mark since at least as early as March 1, 2000.
c. Complainant owns a family of related marks, including the WE BUY UGLY HOUSES mark. See, e.g., United States Patent and Trademark Office (“USPTO”) Reg. No. 2,999,705 registered September 27, 2005.
d. Complainant has owned and operated the <webuyuglyhouses.com> domain name since June 5, 2000.
e. <webuyuglyhousesinfl.com> is confusingly similar to Complainant’s WE BUY UGLY HOUSES mark because the domain name incorporates Complainant’s mark in its entirety, merely adding the phrase “in fl,” a geographic descriptor referring to the US state of Florida.
f. Complainant has not authorized Respondent to use its marks in a domain name.
g. Respondent is not a franchisee of Complainant.
h. The WHOIS information on file identifies “Kevin Crudup” as the registrant name and “KACEI Properties LLC” as the registrant organization.
i. Respondent is using the disputed domain name to operate a website that provides competing services to Complainant.
j. Respondent operates a website that competes with Complainant, offering a “Get Your Free Cash Offer” sign up form for Respondent’s services.
k. Respondent registered <webuyuglyhousesinfl.com> knowing full well that it had no right to use Complainant’s mark in a domain name.
l. Respondent registered the <webuyuglyhousesinfl.com> domain name on April 25, 2013.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the WE BUY UGLY HOUSES mark. Respondent’s domain name is confusingly similar to Complainant’s WE BUY UGLY HOUSES mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <webuyuglyhousesinfl.com> domain name, and that Respondent registered and uses the domain name 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.”).
Complainant has purchased houses in the United States, operating under the WE BUY UGLY HOUSES mark since at least as early as March 1, 2000. Complainant owns USPTO registrations for a family of related marks, including the WE BUY UGLY HOUSES mark. See, e.g., Reg. No. 2,999,705 registered September 27, 2005. Complainant’s USPTO registrations establish Complainant’s rights in the WE BUY UGLY HOUSES mark 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 Policy ¶ 4(a)(i)).
Complainant argues that Respondent’s <webuyuglyhousesinfl.com> domain name is confusingly similar to Complainant’s WE BUY UGLY HOUSES mark, as the domain name incorporates Complainant’s mark in its entirety, merely adding the phrase “in fl,” a geographic descriptor referring to the state of Florida. The disputed domain name also removes the spaces between words in Complainant’s mark and affixes the generic top-level domain (“gTLD”) “.com.” Spaces and gTLDs do not distinguish a domain name from a mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Moreover, Respondent’s addition of a term in its domain name that represents a geographic location is insufficient to create distinction from Complainant’s mark; thus Respondent’s <webuyuglyhousesinfl.com> is confusingly similar to Complainant’s WE BUY UGLY HOUSES mark for the purposes of Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the addition of geograhic terms, such as “cancun” to the end of the CHEAPTICKETS mark in the <cheapticketscancun.com>, <cheapticketscancun.biz>, <cheapticketscancun.net>, and <cheapticketscancun.org> domain names, does not overcome a finding of confusing similarity under Policy ¶ 4(a)(i)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends that Respondent is not now, and has never been, commonly known by the <webuyuglyhousesinfl.com> domain name. Complainant maintains that it has not authorized Respondent to use its marks in a domain name, adding that Respondent is not a franchisee of Complainant. Complainant notes that the WHOIS information on file identifies “Kevin Crudup” as the registrant name and “KACEI Properties LLC” as the registrant organization. The panel in Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) concluded that a respondent was not commonly known by a disputed domain name where there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name. In light of the evidence present in the record, the Panel concludes that Respondent is not commonly known by the <webuyuglyhousesinfl.com> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant further contends that Respondent has not and does not use the <webuyuglyhousesinfl.com> domain name in connection with a bona fide offering of goods or services. According to Complainant, Respondent is using the disputed domain name to operate a website that provides competing services to Complainant. Complainant adds that Respondent uses Complainant’s mark in the title section of its web page. A respondent’s use of a complainant’s mark in a domain name and on its resolving website in order to market competing goods or services evidences a lack of rights and legitimate interests in that domain. See Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”). The Panel finds that Respondent uses the <webuyuglyhousesinfl.com> domain name in connection with neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent’s resolving domain website competes with Complainant by offering a “Get Your Free Cash Offer” sign up form for Respondent’s services. Offering competing products or services from a website that resolves from a domain name which incorporates a complainant’s mark illustrates bad faith disruption of the complainant’s business. See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business). The Panel accordingly holds that Respondent’s use of the <webuyuglyhousesinfl.com> domain name to provide home buying services that compete with those offered by Complainant under its WE BUY UGLY HOUSES mark establishes Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).
Complainant also alleges that Respondent registered <webuyuglyhousesinfl.com> with actual knowledge that it had no right to use Complainant’s mark in a domain name because the WE BUY UGLY HOUSES mark had been registered with the USPTO when Respondent registered the disputed domain name. The Panel finds that the similarity between Complainant’s mark and Respondent’s domain name show that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name. Thus, the Panel concludes that Respondent engaged in bad faith registration and use under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
The Panel finds 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 <webuyuglyhousesinfl.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 28, 2014
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