Ocwen Financial Corporation v. Richard Samuel / Ocwenloanmodifiers
Claim Number: FA1402001544647
Complainant is Ocwen Financial Corporation (“Complainant”), represented by Christiane S. Campbell of Duane Morris, LLP, Pennsylvania, USA. Respondent is Richard Samuel / Ocwenloanmodifiers (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ocwenloanmodifiers.com>, registered with Net 4 India Limited.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 20, 2014; the National Arbitration Forum received payment on February 21, 2014.
On March 4, 2014, Net 4 India Limited confirmed by e-mail to the National Arbitration Forum that the <ocwenloanmodifiers.com> domain name is registered with Net 4 India Limited and that Respondent is the current registrant of the name. Net 4 India Limited has verified that Respondent is bound by the Net 4 India Limited 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 March 5, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 25, 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@ocwenloanmodifiers.com. Also on March 5, 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 31, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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
1. Complainant is a leading provider of residential and commercial loan servicing, special servicing, and asset management services. Complainant is publicly traded on the New York Stock Exchange and has been in business since at least 1986. Complaint operates a website located at <ocwen.com>.
2. Complainant has rights in the OCWEN mark, used in connection with residential and commercial loan servicing. Complainant owns a trademark registration for the OCWEN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,330,061 registered March 14, 2000).
3. Respondent’s <ocwenloanmodifiers.com> domain name is confusingly similar to Complainant’s OCWEN mark. The disputed domain name incorporates Complainant’s mark in its entirety while adding the descriptive terms “loan” and “modifiers,” as well as the generic top-level domain (“gTLD”) “.com.”
4. Respondent does not have any rights or legitimate interests in the <ocwenloanmodifiers.com> domain name.
a. Respondent is not commonly known by the disputed domain name. Although the WHOIS record indicates that the registrant organization is “ocwenloanmodifiers,” the individual registrant, “Richard Samuel” is not affiliated with Complainant or otherwise authorized to use the OCWEN mark in any way.
b. Respondent is using the <ocwenloanmodifiers.com> domain name to operate a fraudulent scheme in which Complainant’s customers are solicited for loan modifications and asked the wire money to Respondent who does not perform loan modifications or any other services. See Complainant’s Exhibit 6-8.
c. The resolving website features a disclaimer stating that Respondent is a third party and not actually Complainant; however, this disclaimer does not grant Respondent rights or legitimate interests in the <ocwenloanmodifiers.com> domain name. See Complainant’s Exhibit 5.
5. Respondent registered and is using the <ocwenloanmodifiers.com> domain name in bad faith.
a. Through its fraud scheme, Respondent is attempting to attract Internet users for Respondent’s own commercial gain. See Complainant’s Exhibit 5-8.
b. Respondent is utilizing email addresses that correspond to the disputed domain name to correspondent with Complainant’s customers in an effort to persuade those users to pay Respondent a fee for loan modifications that are never actually provided. See Complainant’s Exhibit 6-8.
c. Respondent had knowledge of Complainant’s OCWEN mark prior to registering the <ocwenloanmodifiers.com> domain name, and this fact is evidenced by Respondent’s conduct in which Respondent targets Complainant’s customers in a fraud scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Ocwen Financial Corporation of West Palm Beach, FL, USA. Complainant is the owner of domestic registrations for the mark OCWEN and related marks which it has used continuously since at least as early as 2000 in connection with its provision of residential and commercial loan services.
Respondent is Richard Samuel / Ocwenloanmodifiers, USA. Respondent’s registrar’s address is listed as New Delhi, DL, India. The Respondent registered the <ocwenloanmodifiers.com> domain name on or about October 15, 2013.
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 contends it has rights in the OCWEN mark, used in connection with residential and commercial loan servicing. Complainant states it owns a trademark registration for the OCWEN mark with the USPTO (Reg. No. 2,330,061 registered March 14, 2000). The Panel finds that Complainant has rights in the OCWEN mark within the meaning of Policy ¶ 4(a)(i) because Complainant owns a valid trademark registration with the USPTO. See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).
Complainant asserts that Respondent’s <ocwenloanmodifiers.com> domain name is confusingly similar to Complainant’s OCWEN mark. Complainant states that the disputed domain name incorporates Complainant’s mark in its entirety while adding the descriptive terms “loan” and “modifiers,” as well as the gTLD “.com.” The Panel notes that the addition of descriptive terms to a trademark in a disputed domain name does not sufficiently differentiate the disputed domain name from the trademark. See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). The Panel further notes that the addition of a gTLD is irrelevant for the purposes of confusing similarity analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel finds that Respondent’s <ocwenloanmodifiers.com> domain name is confusingly similar to Complainant’s OCWEN mark under Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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). The Complainant has met this burden.
Complainant contends that Respondent does not have any rights or legitimate interests in the <ocwenloanmodifiers.com> domain name. Complainant claims Respondent is not commonly known by the disputed domain name. Complainant notes that, although the WHOIS record indicates that the registrant organization is “ocwenloanmodifiers,” the individual registrant, “Richard Samuel” is not affiliated with Complainant or otherwise authorized to use the OCWEN mark in any way. Past panels have found a respondent who appears to be somehow commonly known by the disputed domain name via WHOIS information may still not be commonly known by the domain name without further evidence to support the claim. See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name). The Panel here finds that Respondent is not commonly known by the <ocwenloanmodifiers.com> domain name under Policy ¶ 4(c)(ii) because there is a lack of evidence to support a contrary finding.
Complainant asserts that Respondent is using the <ocwenloanmodifiers.com> domain name to operate a fraudulent scheme in which Complainant’s customers are solicited for loan modifications and asked the wire money to Respondent who does not perform loan modifications or any other services. In Wells Fargo & Co. v. WhoisGuard, FA 1103650 (Nat. Arb. Forum Dec. 13, 2007), the panel explained that “there is no dispute that respondent previously used the disputed domain name to obtain personal and financial information from Internet customers of complainant. This fraudulent use [is] known as ‘phishing.’” Past panels have also found that phishing schemes in no way demonstrate a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use). The Panel here finds that Respondent appears to be operating a phishing scheme, and therefore not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Complainant alleges that the resolving website features a disclaimer stating that Respondent is a third party and not actually Complainant; however, this disclaimer does not grant Respondent rights or legitimate interests in the <ocwenloanmodifiers.com> domain name. Past panels have supported Complainant’s assertion, finding that use of a disclaimer does not sufficiently suppress the initial confusion on the part of consumers who may be looking for a complainant yet end up at a respondent’s domain name. See AltaVista Co. v. AltaVista, FA 95480 (Nat. Arb. Forum Oct. 31, 2000)(A disclaimer does not, and could not, accompany the domain name, and therefore the “domain name attracts the consumer’s initial interest and the consumer is misled long before he/she has the opportunity to see the disclaimer.”). The Panel here finds that Respondent’s use of a disclaimer does not grant Respondent rights or legitimate interests in the <ocwenloanmodifiers.com> domain name under Policy ¶ 4(a)(ii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant contends that Respondent registered and is using the <ocwenloanmodifiers.com> domain name in bad faith. Complainant alleges that, through its fraud scheme, Respondent is attempting to attract Internet users for Respondent’s own commercial gain. Past panels have found that using a confusingly similar domain name to mislead Internet users and obtain a profit does demonstrates bad faith under Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”). The Panel here finds that Respondent registered and is using the <ocwenloanmodifiers.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent is operating a fraud scheme that attracts Internet users for Respondent’s own commercial gain.
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <ocwenloanmodifiers.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 14, 2014
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