Quicken Loans, Inc. v. Diego
Claim Number: FA1411001588957
Complainant is Quicken Loans, Inc. (“Complainant”), represented by Jennifer K. Ziegler of Brooks Kushman P.C., Michigan, USA. Respondent is Diego (“Respondent”), Malta.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <quicknloans.com>, registered with OnlineNIC, Inc.
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 November 7, 2014; the National Arbitration Forum received payment on November 7, 2014.
On November 9, 2014, OnlineNIC, Inc. confirmed by e-mail to the National Arbitration Forum that the <quicknloans.com> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 November 10, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 1, 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@quicknloans.com. Also on November 10, 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 December 10, 2014, 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 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. Respondent’s <quicknloans.com> domain name is confusingly similar to Complainant’s QUICKEN LOANS mark.
2. Respondent does not have any rights or legitimate interests in the <quicknloans.com> domain name.
3. Respondent registered and uses the <quicknloans.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses the QUICKEN LOANS mark to identify its services in the field of online retail and mortgage lending. Complainant owns the QUICKEN LOANS mark through trademark registration with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,528,282, registered Jan. 8, 2002).
Respondent registered the Respondent’s <quicknloans.com> domain name on July 24, 2003, and uses it to divert Internet users to websites featuring links to competing mortgage products and services.
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 Panel finds that Complainant’s USPTO registration for its QUICKEN LOANS mark satisfies the requirement of Policy ¶ 4(a)(i) to show rights in a mark, despite Respondent’s purported residence in Malta. W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <quicknloans.com> domain name incorporates Complainant’s mark and deletes the letter “e” and the space in the QUICKEN LOANS mark, not enough to distinguish the domain name from Complainant’s mark. The addition of the generic top-level domain (“gTLD”) “.com” is insignificant. See, e.g., Google Inc. v. N/A/ k gautam, FA 1524232 (Nat. Arb. Forum Nov. 18, 2013) (finding that the disputed domain name is confusingly similar to the at-issue mark despite the misspelling of the mark by omitting letters, the addition of a generic term, and the addition of a generic top-level domain); see also Lucky Brand Dungarees, Inc. v. Cole, FA 363048 (Nat. Arb. Forum Dec. 28, 2004) (stating that, “[i]t is well established that neither the deletion of a space between words in a trademark nor the addition of a generic top-level domain distinguish a domain name from the trademark”). Thus, the Panel finds that the <quicknloans.com> domain name is confusingly similar to Complainant’s QUICKEN LOANS mark.
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 argues that Respondent is not commonly known by the disputed domain name, and shares no affiliation with Complainant. The WHOIS information identifies “Diego” as the registrant of the disputed domain name. The Panel finds that there is no basis to find that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant further claims that the disputed domain name redirects users to one of several commercial websites that feature links to competing mortgage products and services. The Panel notes that the page resolving from <quicknloans.com> promotes links such as “$1000 Payday Loan Overnight,” “Personal Loan,” and “Home Mortgages.” Complainant argues that such use evinces neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the subject domain name. The Panel agrees and finds that Respondent’s use of the <quicknloans.com> domain name to promote commercial links in competition with Complainant does not demonstrate a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. 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).
Respondent’s <quicknloans.com> domain name resolves to a website offering mortgage-lending products and services that compete with Complainant’s offerings, disrupting Complainant’s business. This constitutes bad faith under Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent uses the disputed domain name to intentionally attract and mislead Internet users to its own website for commercial gain. This amounts to bad faith under Policy ¶ 4(b)(iv). In Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), the panel wrote, “Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”
Complainant argues that Respondent registered the disputed domain name with knowledge of Complainant, and therefore in bad faith, as evidenced by Respondent’s use of the <quicknloans.com> domain name to promote mortgage-lending content. The Panel agrees and finds that Respondent knew of Complainant and its right in the QUICKEN LOANS mark when it registered the disputed domain name. This is further evidence of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Nat. Arb. Forum Feb. 6, 2014), where the panel stated, “[A]lthough the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”
The Panel finds that 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 <quicknloans.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 12, 2014
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