LowerMyBills, Inc. v. Douglas Solether
Claim Number: FA0509000561089
Complainant is LowerMyBills, Inc. (“Complainant”), represented by Sean F. Heneghan 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is Douglas Solether (“Respondent”), 2323 Sundown Lane, Lake Worth, FL 33462.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lowermybill.info>, registered with Schlund + Partner AG.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 13, 2005; the National Arbitration Forum received a hard copy of the Complaint on September 16, 2005.
On September 16, 2005, Schlund + Partner AG confirmed by e-mail to the National Arbitration Forum that the <lowermybill.info> domain name is registered with Schlund + Partner AG and that Respondent is the current registrant of the name. Schlund + Partner AG has verified that Respondent is bound by the Schlund + Partner AG registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 6, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 26, 2005 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@lowermybill.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 1, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <lowermybill.info> domain name is confusingly similar to Complainant’s LOWERMYBILLS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <lowermybill.info> domain name.
3. Respondent registered and used the <lowermybill.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
The undisputed record indicates the following.
Complainant, LowerMyBills, Inc., is an independent online service that provides one-step destination that offers savings through its relationship with more than 400 business partners across fifteen categories, including consumer lending, auto and health insurance, and long distance phone and wireless service. Complainant’s aggregation of mortgage lenders’ rates for home refinance, home purchase, home equity and/or debt consolidation loans is one of its most popular services.
Complainant has invested substantially in advertising and promoting its services offered under LOWERMYBILLS.COM. Complainant has invested over $25 million on print, radio, and Internet advertising and currently invests $1 million per month in advertising.
Complainant owns numerous trademark registrations for its LOWERMYBILLS.COM mark. Complainant has registered the LOWERMYBILLS.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,519,342 issued December 18, 2001).
Complainant also has two pending UDRP proceedings filed against Respondent for use of Complainant’s LOWERMYBILLS.COM mark.
Respondent registered the <lowermybill.info> domain name on December 4, 2004. Respondent’s domain name resolves to the www.commercialbanc.com website that features products and services that directly compete with those of Complainant’s business.
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."
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.”).
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.
Complainant has established with
extrinsic proof in this proceeding that it has rights in the LOWERMYBILLS.COM
mark based on its registration of the mark with the USPTO. It is established under the Policy that a
complainant’s registration of a mark with a federal authority establishes a prima
facie case of the complainant’s rights.
See Janus Int’l Holding Co.
v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (“Panel decisions have held
that registration of a mark is prima
facie evidence of validity, which creates a rebuttable presumption that the
mark is inherently distinctive.”).
Additionally, Respondent’s <lowermybill.info> domain name is confusingly similar to Complainant’s mark, as the domain name incorporates Complainant’s LOWERMYBILLS.COM mark, as the domain name merely deletes the letter “s” from Complainant’s mark. Such a change is not enough to overcome a finding of confusing similarity pursuant to Policy ¶ 4(a)(i). Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).
Furthermore, the addition of the top-level domain “.info” is irrelevant in determining whether the <lowermybill.info> domain name is confusingly similar to Complainant’s mark. See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights or legitimate interests in the <lowermybill.info> domain name. When a complainant establishes a prima facie case pursuant to Policy ¶ 4(a)(ii), the burden shifts to the respondent to prove that it has rights or legitimate interests. Due to Respondent’s failure to respond to the Complaint, the Panel infers that Respondent does not have rights or legitimate interests in the disputed domain name. Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once the complainant asserts that the respondent does not have rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide credible evidence that substantiates its claim of rights or legitimate interests in the domain name).
Moreover, Respondent is not commonly known by the <lowermybill.info> domain name. Thus, the Panel concludes that Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where respondent was not commonly known by the mark and never applied for a license or permission from complainant to use the trademarked name).
Furthermore, Respondent is using
the <lowermybill.info> domain name to redirect consumers to its
commercial website that features goods and services which directly compete with
those offered by Complainant. The Panel
finds that Respondent’s use of a domain name that is confusingly similar to
Complainant’s mark to divert Internet users to its commercial website for
Respondent’s own commercial gain 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). 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).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The unrefuted record supports Complainant’s assertion that Respondent registered and used the confusingly similar <lowermybill.info> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) as it registered the domain name to disrupt Complainant’s business by operating a competing website. See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent).
Moreover, Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv), as Respondent is using the <lowermybill.info> domain name to intentionally attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant as to the source, sponsorship, affiliation or endorsement of its website. See Fanuc Ltd v. Mach. Control Servs., FA 93667 (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant's mark to sell the complainant's products).
Furthermore, Respondent has used the <lowermybill.info> domain name, which contains Complainant’s LOWERMYBILLS.COM mark, to redirect Internet users to its own commercial website which feature products and services that directly compete with Complainant’s goods and services. This suggests that Respondent had actual knowledge of Complainant’s rights in the mark when it registered the domain name and chose the disputed domain name based on the goodwill Complainant has acquired in its LOWERMYBILLS.COM mark. Furthermore, Complainant’s registration of the LOWERMYBILLS.COM mark with the USPTO bestows upon Respondent constructive notice of Complainant’s rights in the mark. Respondent’s registration of a domain name containing Complainant’s mark in spite of Respondent’s actual or constructive knowledge of Complainant’s rights in the mark is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).
The
Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lowermybill.info> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: November 15, 2005
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