loanDepot.com, LLC v. Expired Domain Resource****Maybe For Sale on Dynadot Marketplace**** c/o Dynadot
Claim Number: FA1805001786283
Complainant is loanDepot.com, LLC (“Complainant”), represented by Hani Sayed of Rutan & Tucker LLP, California, USA. Respondent is Expired Domain Resource****Maybe For Sale on Dynadot Marketplace**** c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mellolending.com> (the “Domain Name”), registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2018; the Forum received payment on May 11, 2018.
On May 16, 2018, Dynadot, LLC confirmed by e-mail to the Forum that the <mellolending.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 May 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 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@mellolending.com. Also on May 17, 2018, 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 8, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant announced MELLO LENDING in 2017 and started using the MELLO mark in relation to loan services in April 2017. It owns a number of domain names including MELLO including MELLO.com and <melloloan.com>. Trade mark applications were filed for MELLO in November 2017 and MELLO LENDING in April 2018.
The Domain Name is confusingly similar to Complainant’s registered MELLO mark (lending being a descriptive term not distinguishing the Domain Name from the MELLO mark) and identical to its common law rights in MELLO LENDING as “.com” does not distinguish the Domain Name from Complainant’s MELLO and MELLO LENDING marks.
The Domain Name was registered seven days after Complainant filed its MELLO LENDING trade mark application. Although not the subject of this Complaint, Respondent also registered <mellotitle.com> 3 days after Complainant applied for a trade mark registration for MELLO TITLE and mellosettlementservices.com 3 days after Complainant applied for a trade mark registration for MELLO SETTLEMENT SERVICES. All the domain names have not been used but have been offered for sale for $950, a sum in excess of registration costs. This cannot be a bona fide offering of goods or a legitimate non commercial fair use. Respondent is not commonly known by the Domain Name and has no authorisation from Complainant to use Complainant’s marks.
The pattern of registrations containing the MELLO mark shows Respondent knew of Complainant and its business.
The Domain Name was immediately put up for sale with two others containing Complainant’s MELLO mark and was registered to sell to Complainant for more than registration costs being registration and use in bad faith under Policy 4 (b)(i). Registration of three names containing Complainant’s MELLO mark is evidence of bad faith registration and use of the Domain Name and a pattern of registrations designed to block Complainant from registering equivalent domain names. The Domain Name is also designed to confuse Internet users under Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant announced its brand MELLO LENDING in 2017 but had started using the MELLO mark in relation to loan services in April 2017. It owns a number of domain names including MELLO including <mello.com> and <melloloan.com>. Trade mark applications were filed for MELLO in November 2017 and MELLO LENDING in April 2018.
The Domain Name, registered seven days after the Complainant’s trade mark application for MELLO LENDING, has not been used, but has been offered for sale for $950, along with two other domain names containing brands of the Complainant containing the MELLO Mark. Such domain names were also registered mere days after and reflecting trade mark applications applied for by the Complainant.
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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant’s MELLO trade mark (registered in USA for, inter alia, financial services as of April 2017), the generic word ‘lending’ and the gTLD .com. Adding such a generic word and a gTLD does not distinguish the Domain Name from Complainant’s MELLO mark which is the distinctive component of the Domain Name. Complainant also has a reputation in the brand MELLO LENDING announced in April 2018 and given a lot of publicity although it is not yet registered. In any event, given the registered rights in MELLO, it is not necessary to analyze the exact nature of the rights in MELLO LENDING.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which Complainant has rights.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
There has been no use of the Domain Name so it has not been used for a bona fide offering of goods and services or a legitimate non commercial fair use.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registered and Used in Bad Faith
The Respondent has registered three domain names containing Complainant’s MELLO trade marks without explanation and which reflect exactly new brands of Complainant, the subject of trade mark applications by Complainant days before the domain name registrations. This constitutes a pattern of cyber squatting conduct designed to prevent Complainant from reflecting its brands in equivalent domain name registrations under Policy ¶ 4(b)(ii).
The Domain Name has also been offered for sale for a sum substantially above the out of pocket costs of registration of the Domain Name. See Citigroup Inc. v. Kevin Goodman, FA1506001623939 (Forum July 11, 2015) (holding that the evidence showed that the respondent registered the disputed domain name primarily for the purpose of transferring it for a profit and demonstrated the respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i).).
Accordingly the panelist finds that the Domain Name has been registered and used in bad faith pursuant to Policy ¶¶ 4(b)(i) and (ii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mellolending.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 10, 2018
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