DECISION

 

LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao

Claim Number: FA1712001762308

 

PARTIES

Complainant is LoanDepot.com, LLC (“Complainant”), represented by Lindy M. Herman of Rutan & Tucker LLP, California, USA.  Respondent is Kaolee (Kay) Vang-Thao (“Respondent”), Minnesota, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <zerodownloandepot.com>, registered with Tucows Domains Inc.

 

PANEL

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.

 

Ho Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on December 11, 2017; the Forum received payment on December 11, 2017.

 

On Dec 12, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <zerodownloandepot.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name.  Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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@zerodownloandepot.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 Ho Hyun Nahm, Esq. 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

i) Complainant, LoanDepot.com, LLC, is a nonbank consumer lender offering home mortgage, refinance, equity, and personal loan products. Complainant has rights in the LOANDEPOT mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,804,520, registered Jun. 15, 2010). See Compl. Annex E. Respondent’s <zerodownloandepot.com> domain name is confusingly similar to Complainant’s LOANDEPOT mark, as the domain name contains the mark in its entirety and merely differs by the addition of the phrase “zero down “ and the “.com” generic top-level domain (“gTLD”).

 

ii) Respondent has no rights or legitimate interests in the <zerodownloandepot.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the LOANDEPOT mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain name is being used to cause consumer confusion and as a “lead generator” to divert Complainant’s customers and potential customers. See Compl. Annex I.

 

iii) Respondent registered and is using the <zerodownloandepot.com> domain name in bad faith. Respondent owns a large number of domain names used for lead generation, indicating a pattern of bad faith registration and use. Additionally, its use of the at-issue domain name to purport to connect borrowers with lenders for loans is competitive and serves to disrupt Complainant’s business and create a likelihood of confusion with Complainant’s mark. Further, Respondent is presumably phishing for Internet users’ personal information.

 

B. Respondent

Respondent failed to submit a formal Response in this proceeding. However, the Forum was copied on correspondence wherein Respondent claims it is a licensed realtor and was using the domain name to produce leads for its business. Respondent further argues the resolving website is a placeholder landing page put in place by the designer, and that Respondent was not aware of Complainant or its trademark.

 

Respondent offers to register a different domain name in exchange for Complainant’s payment of new domain purchase costs. Complainant declined this offer.

 

The Panel notes that Respondent registered the disputed domain name on September 26, 2017.

 

FINDINGS

Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainants protected mark.

 

Respondent has no rights to or legitimate interests in the disputed domain name.

  

Respondent registered and used the disputed domain name in bad faith.

 

DISCUSSION

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."

 

Preliminary Issue: Deficient Response

 

The Forum was copied on email correspondence between Respondent and Complainant. However, the emails do not include contact information or preferred manner of communication for Respondent; identification of Panelist preferences; or a certification statement. Thus the Forum does not consider the Response to be in compliance with ICANN Rule 5.  The Panel, does not consider this Response to be in compliance with ICANN Rule 5 either, and thus decides not to accept as the Response.  See Sears Brands, LLC v. Airhart, FA 1350469 (Forum Dec. 2, 2010) (electing to not accept and not consider the response as the response was not in compliance with ICANN Rule 5).

 

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.”).

 

Identical and/or Confusingly Similar

 

Complainant claims rights in the LOANDEPOT mark based upon registration of the mark with the USPTO (e.g. Reg. No. 3,804,520, registered Jun. 15, 2010). See Compl. Annex E. Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel therefore holds that Complainant’s registration of the LOANDEPOT mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).

 

Complainant next argues Respondent’s <zerodownloandepot.com> domain name is confusingly similar to the LOANDEPOT mark, as the name contains the mark in its entirety and merely differs by the addition of the phrase “zero down” and the “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy4(a)(i) analysis. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel therefore determines the <zerodownloandepot.com> domain name is confusingly similar to the LOANDEPOT mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

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 that Respondent has no rights or legitimate interests in the <zerodownloandepot.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the LOANDEPOT mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way.  Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name.  On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies Respondent as “Kaolee (Kay) Vang-Thao,” and no information on the record indicates Respondent has been authorized to register the domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <zerodownloandepot.com> domain name.

 

Complainant further argues Respondent’s lack of rights or legitimate interests in the <zerodownloandepot.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends the domain name is being used to cause consumer confusion and compete for Complainant’s customer base. Competitive use of a domain name is one indicative of rights or legitimate interests per Policy ¶¶4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 claims Respondent uses the domain name and resolving website as a “lead generator” to divert Complainant’s customers and potential customers. See Compl. Annex I. The Panel may therefore determine that Respondent does not have rights or legitimate interests in the <zerodownloandepot.com> domain name.

 

The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

 

Complainant contends that the <zerodownloandepot.com> domain name is part of a pattern of such bad faith registration and use. A showing of a pattern of bad faith registrations can support a finding that a domain name has been registered and used in bad faith per Policy ¶ 4(b)(ii). See 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); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)). Complainant claims Respondent is the registrant of an inordinate number of domain names presumably used for lead generation. See Compl. Annex J (list of domain names with Respondent listed as registrant). The Panel notes that none of the domain names appears to infringe on famous marks. As such, the Panel determines that the registration and use of the <zerodownloandepot.com> domain name is not necessarily a part of pattern and is evidence of bad faith per Policy ¶ 4(b)(ii).

 

Complainant also argues Respondent uses the <zerodownloandepot.com> domain name to divert traffic to its own website for commercial gain. Such use can demonstrate bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). 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).”); see also ShipCarsNow, Inc. v. Wet Web Design LLC, FA1501001601260 (Forum Feb. 26, 2015) (“Respondent’s use of the domain name to sell competing services shows that Respondent is attempting to commercially benefit from a likelihood of confusion.  Therefore the Panel finds that a likelihood of confusion exists, that Respondent is attempting to commercially benefit from Complainant’s mark, and that Complainant has rights that predate any rights of the Respondent, all of which constitutes bad faith under Policy 4(b)(iv).”). Complainant claims that by adding a descriptive phrase to the LOANDEPOT mark, Respondent is misrepresenting its website as being related to Complainant in order to divert them to its own website for commercial gain. Complainant claims Respondent’s use of the domain name to offer competing loan services is likely to further such confusion. See Compl. Annex I.

 

Complainant further claims Respondent is likely using the <zerodownloandepot.com> domain name to phish for users’ information. The use of a domain name to obtain users’ personal information constitutes phishing, and can be independent evidence of bad faith registration and use. See Citigroup Inc. v. Domain MANAGER / Domain Brokers, FA1505001621817 (Forum July 13, 2015) (finding that the respondent’s use of a survey, in which Internet users were encouraged to enter personal information to complete, indicated bad faith registration and use pursuant to Policy ¶ 4(a)(iii)). Complainant contends that Respondent presumably uses the domain name to phish for personal information. See Compl. Annex. I. The Panel agrees and finds Respondent to have acted in bad faith per Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <zerodownloandepot.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Ho Hyun Nahm, Esq., Panelist

Dated:  January 9, 2018

 

 

 

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