LendingTree, LLC v. michal restl c/o Dynadot
Claim Number: FA1502001605945
Complainant is LendingTree, LLC (“Complainant”), represented by Christiane S. Campbell of Duane Morris LLP, Pennsylvania, USA. Respondent is michal restl c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mylendingtree.com>, registered with DYNADOT 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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 20, 2015; the Forum received payment on February 25, 2015.
On February 25, 2015, DYNADOT LLC confirmed by e-mail to the Forum that the <mylendingtree.com> domain name is registered with DYNADOT LLC and that Respondent is the current registrant of the name. DYNADOT LLC has verified that Respondent is bound by the DYNADOT 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 26, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 18, 2015 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@mylendingtree.com. Also on February 26, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 26, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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.
Complainant
Complainant owns the LENDINGTREE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 2,265,733, registered July 27, 1999). Complainant uses the LENDINGTREE mark in connection with its loan-related services; specifically, services that match lenders and borrowers. The <mylendingtree.com> domain name is confusingly similar to the LENDINGTREE mark. The domain name incorporates the mark in full, adds the generic word “my,” and inserts the generic top-level domain (“gTLD”) “.com” to the domain name.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name nor by Complainant’s LENDINGTREE mark. Respondent is not licensed by Complainant to use Complainant’s mark. Further, Respondent is not using the disputed domain name for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s disputed domain name redirects Internet users to an array of third-party websites. Some of the resolving websites have been known to be associated with malware.
Respondent has engaged in bad faith registration and use of the <mylendingtree.com> domain name. Respondent has engaged in a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). Respondent is using the domain name to intentionally attract Internet users, for commercial gain, through a likelihood of confusion with Complainant. Respondent had knowledge of Complainant’s rights in the LENDINGTREE mark when it registered the disputed domain name, which is further evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). Respondent is using the disputed domain name in connection with malware, further demonstrating Respondent’s bad faith.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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 that it owns the LENDINGTREE mark through registration with the USPTO (e.g., Reg. No. 2,265,733, registered July 27, 1999). Complainant states that it uses the LENDINGTREE mark in connection with its loan-related services; specifically, services that match lenders and borrowers. The Panel concludes that Complainant’s valid registration of the LENDINGTREE mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of 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 asserts that the <mylendingtree.com> domain name is confusingly similar to the LENDINGTREE mark. The domain name includes the mark in full, adds the generic word “my”, and adds the gTLD “.com” to the domain name. Past panels have found that the addition of a generic word does not sufficiently distinguish the disputed domain name from the registered mark, and the addition of a gTLD does nothing to negate confusing similarity. See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”). As such, the Panel determines that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proven this element.
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.”).
Complainant claims that Respondent has no rights or legitimate interests in the disputed domain name. Complainant argues that Respondent is not commonly known by the disputed domain name nor by Complainant’s LENDINGTREE mark. The WHOIS information for the disputed domain name lists “michal restl c/o Dynadot” as the registrant of record. Complainant states that it has not authorized Respondent to use Complainant’s mark. The Panel agrees that these contentions are sufficient to establish Respondent’s lack of rights in 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 claims Respondent is not using the disputed domain name for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s disputed domain name redirects Internet users to an array of third-party websites. Past panels have found that a domain registrant’s attempt to divert Internet users to third-party websites is not a bona fide offering of goods or services. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); Charles Letts & Co Ltd. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s parking of a domain name containing the complainant’s mark for the respondent’s commercial gain did not satisfy Policy ¶ 4(c)(i) or ¶ 4(c)(iii)). The Panel finds Respondent’s disputed domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶ 4(a)(ii).
Complainant alleges that some of the resolving websites have been known to be associated with malware. Past panels have held that directing Internet users to a website that attempts to download viruses or malware is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name. See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Nat. Arb. Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”). The Panel agrees that Respondent’s connection with malware is evidence that it lacks a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Complainant has proven this element.
Complainant asserts that Respondent has engaged in a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). Complainant argues that Respondent has adverse UDRP decisions against it for registering domain names using well known company names and trademarks. See e.g., Jessica London, Inc. v. Michal Restl, FA 1371109 (Nat. Arb. Forum March 11, 2011); Allstate Insurance Co. v. Michal Restl, FA 1375161 (Nat. Arb. Forum April 8, 2011). Past panels have found that prior adverse UDRP decisions are indicative of bad faith under Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”). Accordingly, the Panel finds that Respondent has engaged in bad faith registration pursuant to Policy ¶ 4(b)(ii).
Complainant contends that Respondent is using the domain name to intentionally attract Internet users, for commercial gain, through a likelihood of confusion with Complainant. Complainant asserts that Respondent financially benefits by distributing malware to unsuspecting visitors. Complainant states that the disputed domain name, once accessed, automatically redirects Internet users to a third-party website. Complainant asserts that this website is known for hosting and redirecting Internet users to advertisers that infect computers with malware. Past panels have agreed that disputed domain names used to confuse Internet users and result in commercial profit by redirecting Internet users to websites that host malware is evidence of bad faith use and registration under Policy ¶ 4(b)(iv). See Google, Inc. v. Petrovich, FA 1339345 (Nat. Arb. Forum September 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)). As the disputed domain name redirects users to a website that purportedly infects computers with malware, the Panel finds that Respondent has engaged in bad faith use under Policy ¶ 4(b)(iv).
Complainant argues that Respondent had knowledge of Complainant’s rights in the LENDINGTREE mark when it registered the disputed domain name, which is further evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). Complainant asserts that Respondent had at least constructive knowledge of the LENDINGTREE mark at the time of registration, as Complainant’s marks were in use since 1998 and first registered in 1999. Complainant asserts that Respondent acted in bad faith under Policy ¶ 4(a)(iii). UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith registration under Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Nat. Arb. Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Complainant contends that Respondent is using the disputed domain name in connection with malware, further demonstrating Respondent’s bad faith. Complainant has provided a screen shot of the resolving page featuring a malware warning. The Panel agrees that Respondent’s use of the disputed domain name in furtherance of malicious software evinces Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Google, Inc. v. Petrovich, FA 1339345 (Nat. Arb. Forum September 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <mylendingtree.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: March 31, 2015
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