Quicken Loans Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1705001732009
Complainant is Quicken Loans Inc. (“Complainant”), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rocketloansfund.com>, registered with Internet Domain Service BS Corp.
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 May 16, 2017; the Forum received payment on May 16, 2017.
On May 17, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <rocketloansfund.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 May 19, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 2017 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@rocketloansfund.com. Also on May 19, 2017, 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 June 13, 2017, 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.
A. Complainant
Complainant, Quicken Loans Inc., is a provider of financial lending services with headquarters based in Detroit, Michigan. In connection with this business, Complainant uses the ROCKETLOAN mark to promote its goods and services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,288,697, registered Oct. 26, 1999). <rocketloansfund.com> is confusingly similar as it contains Complainant’s mark in its entirety and adds an “s,” the descriptive term “fund,” and the generic top-level-domain “.com.”
Respondent lacks rights and legitimate interests in <rocketloansfund.com>. Respondent is not commonly known by the disputed domain name and Complainant did not authorize Respondent to register a domain name reflecting Complainant’s mark. Further, Respondent failed to use <rocketloansfund.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, <rocketloansfund.com> resolves to a page that passes off as Complainant to phish for the information of Internet users that believe they have reached Complainant’s website.
Respondent registered and used <rocketloansfund.com> in bad faith. Respondent disrupts Complainant’s business through the creation of confusion as to the owner of the domain name and resolving website. Respondent intentionally attracts Internet users for commercial gain through its passing off behavior. Respondent had actual notice of Complainant’s rights in the ROCKETLOAN mark at the time Respondent registered <rocketloansfund.com>.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <rocketloansfund.com> domain name.
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(f), 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 (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 asserts rights in the ROCKETLOAN mark based upon registration with the USPTO (Reg. No. 2,288,697, registered Oct. 26, 1999). Registration with a trademark authority is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel finds Complainant has rights in the ROCKETLOAN mark.
Next, Complainant contends Respondent’s domain name, <rocketloansfund.com>, is confusingly similar to the mark as it contains Complainant’s mark in its entirety and appends an “s” to the mark, the descriptive term “fund” and the generic top-level-domain “.com.” Past panels have found the addition of terms descriptive of and relevant to a complainant’s business, and a gTLD, are insufficient to differentiate between the mark and the domain per Policy ¶ 4(a)(i). See Gillette Co. v. RFK Assocs., FA 492867 (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). Additionally, the mere addition of an “s” to a mark has been considered insignificant. See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”). The Panel finds Respondent’s domain name to be confusingly similar to Complainant’s mark.
Complainant has proved 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 (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 (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 Respondent is not commonly known by <rocketloansfund.com>. Where there is no Response indicating otherwise, WHOIS information may support a finding that a respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Past panels have also found a respondent to not be commonly known by a domain name where a WHOIS privacy service was used to register the domain name. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). The WHOIS information of record names the registrant as “Domain Admin.” The Panel finds Respondent is not commonly known by <rocketloansfund.com> per Policy ¶ 4(c)(ii).
Next, Complainant argues Respondent failed to use <rocketloansfund.com> in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, <rocketloansfund.com> resolves to a page that passes off as Complainant to phish for the information of Internet users that believe they have reached Complainant’s website. Use of a resolving website to pass off as a complainant for a respondent’s commercial gain indicates a lack of rights and legitimate interests in the domain name. Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (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).”); General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Here, Complainant asserts that Respondent appropriates Complainant’s entire mark into the disputed domain name and uses the resolving website to pass off as Complainant and divert Internet users seeking Complainant to Respondent’s website. The Panel finds Respondent’s use of <rocketloansfund.com> does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Complainant has proved this element.
Complainant argues Respondent registered and uses <rocketloansfund.com> in bad faith as Respondent disrupts Complainant’s business via the sale of products that compete with Complainant. Use of a disputed domain name to disrupt a complainant’s business via the sale of competing products indicates bad faith per Policy ¶ 4(b)(iii). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). Here, Respondent registered and used an allegedly confusingly similar domain name to sell products in competition with Complainant’s financial business. The Panel finds Respondent acted in bad faith pursuant to Policy ¶ 4(b)(iii).
Next, Complainant contends Respondent creates initial interest confusion for Internet users visiting <rocketloansfund.com> as Respondent has appropriated Complainant’s marks and used them to pass off as Complainant. Use of a complainant’s marks to pass off and create confusion as to the ownership of a disputed domain name is behavior indicative of bad faith per Policy ¶ 4(b)(iv). Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). The Panel therefore finds Respondent has appropriated Complainant’s marks in an attempt to pass off for commercial gain, and finds this is further evidence of Respondent’s bad faith registration and use.
Next, Complainant argues Respondent used the disputed domain name to run a phishing scheme to gather the information of Internet users seeking Complainant but instead found Respondent’s resolving website. Use of a confusingly similar domain name to run a phishing scheme is evidence of bad faith per Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum August 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). The Panel finds this is additional evidence of Respondent’s bad faith.
Last, Complainant argues Respondent had actual notice of Complainant’s rights in the ROCKETLOAN mark at the time Respondent registered <rocketloansfund.com>. Actual notice, as demonstrated by use, of a complainant’s rights in a mark prior to registration of a disputed domain name containing it is sufficient for a finding of bad faith pursuant to Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although 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.”). Here, Respondent has appropriated Complainant’s mark to compete with Complainant’s business. The Panel finds this is further evidence of Respondent’s bad faith registration and use per Policy ¶ 4(a)(iii).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <rocketloansfund.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: June 21, 2017
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