LoanDepot.com, LLC v. Micheal Ard
Claim Number: FA1712001762271
Complainant is LoanDepot.com, LLC (“Complainant”), represented by Hani Sayed of Rutan & Tucker LLP, California, USA. Respondent is Micheal Ard (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loandepotfund.com>, registered with Name.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 11, 2017; the Forum received payment on December 11, 2017.
On December 12, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <loandepotfund.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 December 13, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2018 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@loandepotfund.com. Also on December 13, 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 January 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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 is a non-bank consumer lender offering home mortgages, refinance, equity, and personal loan products. Complainant has rights in its LOANDEPOT mark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,804,520, registered Jun. 15, 2010). Respondent’s <loandepotfund.com> domain name is confusingly similar to Complainant’s LOANDEPOT mark by incorporating the mark in its entirety and adding a generic word “fund” and a “.com” generic top level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <loandepotfund.com> domain name. Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the LOANDEPOT mark. Additionally, Respondent did not make a bona fide offering of goods or services or a noncommercial or fair use at the <loandepotfund.com> domain name. Instead, Respondent attempts to pass off as Complainant in order to divert potential customers and compete with Complainant’s business.
Respondent registered and used the <loandepotfund.com> in bad faith. Respondent demonstrates a pattern of bad faith registration and use. Additionally, Respondent attempts to divert traffic for its own gain by creating a likelihood of confusion.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a non-bank consumer lender offering home mortgages, refinance, equity, and personal loan products. Complainant has rights in its LOANDEPOT mark through its registrations with the USPTO (e.g., Reg. No. 3,804,520, registered Jun. 15, 2010). Respondent’s <loandepotfund.com> domain name is confusingly similar to Complainant’s LOANDEPOT mark.
Respondent, Michael Ard, registered the <loandepotfund.com> domain name on August 1, 2017.
Respondent has no rights or legitimate interests in the <loandepotfund.com> domain name. Respondent attempts to pass off as Complainant in order to divert potential customers and compete with Complainant’s business.
Respondent registered and used the <loandepotfund.com> 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(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.”).
Complainants has rights in the LOANDEPOT mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”). Policy ¶ 4(a)(i).
Respondent’s <loandepotfund.com> domain name is confusingly similar to Complainant’s LOANDEPOT mark by incorporating the mark in its entirety and adding a generic word “fund” and a “.com” generic top level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <loandepotfund.com> domain name. Respondent is not authorized to use Complainant’s LOANDEPOT mark. The WHOIS information for the <loandepotfund.com> domain name identifies “Michael Ard” as the registrant. Respondent is not commonly known by the <loandepotfund.com> domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)).
Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use at its <loandepotfund.com> domain name under Policy ¶¶ 4(c)(i) and (iii). Respondent’s <loandepotfund.com> domain name appears to be a loan lead generator in the business of collecting customer information and reselling it to other lenders, many of whom are likely competitors to Complainant for financial products. Respondent is using the domain name to pass off as Complainant and divert users. Passing off in order to compete with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”); see also 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).”).
Complainant contends Respondent registered and used the <loandepotfund.com> domain name in bad faith as Respondent demonstrates a pattern of bad faith registration. Registration of multiple domains containing famous marks and having a history of adverse UDRP cases shows bad faith registration and use. See Maurice Sporting Goods, Inc. v. Xiaodong Peng, FA1506001625928 (Forum Aug. 1, 2015) (finding that the respondent had engaged in bad faith pursuant to Policy ¶ 4(b)(ii) where the respondent had been unsuccessful in three previous UDRP cases); see also Hachette Filipacchi Presse v. Fortune Int'l Dev., FA 96685 (Forum Apr. 6, 2001) (finding that where the respondent has registered over 50 domain names that correspond to different well-known trademarks, evidence of a pattern exists). Complainant asserts Respondent currently holds 244 other domain names that incorporate third party trademarks. Respondent also has a history of registering domain names containing trademarks of third parties in bad faith. See Charles Schwab & Co., Inc. v. Michael Ard, FA 1741975 (Forum August 24, 2017)(transferred); Morgan Stanley v. Micheal Ard, FA 1747231 (Forum September 27, 2017)(transferred); Amscot Corporation v. Micheal Ard, D2017-1813 (WIPO October 26, 2017)(transferred); Comerica Bank v. Micheal Ard, D2017-1487 (WIPO September 14, 2017)(transferred). Therefore, the Panel finds that Respondent demonstrates a pattern of bad faith registration and use per Policy ¶ 4(b)(ii).
Next, Respondent registered and used the <loandepotfund.com> domain name in bad faith under per Policy ¶¶ 4(b)(iv) by creating user confusion in an attempt to divert users from Complainant to Respondent’s resolving website. See ShipCarsNow, Inc. v. Wet Web Design LLC, FA1501001601260 (Forum Feb. 26, 2015) (Respondent’s use of the domain name to sell competing services constitutes bad faith under Policy ¶ 4(b)(iv)).
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 <loandepotfund.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 18, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page