Countrywide Financial Corporation v. James Crespin
Claim Number: FA0602000645926
Complainant is Countrywide Financial Corporation (“Complainant”), represented by Lance G. Johnson, of Roylance, Abrams, Berdo & Goodman, L.L.P., 1300 19th Street NW, Suite 600, Washington, DC 20036-1649. Respondent is James Crespin (“Respondent”), 2103 Pioneer Tpke, Macksville, KS 67557.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <countrywide-mortgage.net>, registered with Tlds, LLC d/b/a Srsplus.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 15, 2006; the National Arbitration Forum received a hard copy of the Complaint on February 21, 2006.
On February 16, 2006, Tlds, LLC d/b/a Srsplus confirmed by e-mail to the National Arbitration Forum that the <countrywide-mortgage.net> domain name is registered with Tlds, LLC d/b/a Srsplus and that Respondent is the current registrant of the name. Tlds, LLC d/b/a Srsplus has verified that Respondent is bound by the Tlds, LLC d/b/a Srsplus 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 February 24, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 16, 2006 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@countrywide-mortgage.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 21, 2006, 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 <countrywide-mortgage.net> domain name is confusingly similar to Complainant’s COUNTRYWIDE mark.
2. Respondent does not have any rights or legitimate interests in the <countrywide-mortgage.net> domain name.
3. Respondent registered and used the <countrywide-mortgage.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Countrywide Financial Corporation, has been providing mortgage lending, mortgage banking, insurance agency, and securities brokerage services since 1969. Complainant is well known in the financial services industry as “Countrywide” and ranks 150th in the Fortune 500, 116th on the S&P 500, and 65th in Barron’s 500. In 2004, Complainant produced more than $300 billion worth of mortgages, or one out of every eight home loans in the United States mortgage market. In 2005, Complainant ranked first for United States residential mortgage originations and United States residential mortgage service providers. Complainant ranked second in the mortgage services category of Fortune magazine’s list of America’s Most Admired Companies. Complainant had over $128 billion in assets, $13 billion in revenues, and $9 billion in intangibles in fiscal year 2004.
Complainant holds trademark registrations for the COUNTRYWIDE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,744,794 issued January 5, 1993 and Reg. No. 1,918,325 issued September 12, 1995). Complainant has also registered several variations of the COUNTRYWIDE mark, including COUNTRYWIDE INVESTPLUS (Reg. No. 2,249,405 issued June 1, 1999), COUNTRYWIDE BANK (Reg. No. 2,767,566 issued September 23, 2003), and COUNTRYWIDE FINANCIAL (Reg. No. 2,903,702 issued November 16, 2004).
Complainant registered the <countrywide.com> domain name on July 26, 1994, and the <mycountrywide.com> domain name on May 6, 2002.
Respondent registered the <countrywide-mortgage.net> domain name on October 11, 2004. Respondent’s domain name resolves to a website displaying links to Complainant’s direct competitors and to unrelated content.
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. 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 rights to the COUNTRYWIDE mark
through registration of the mark with the USPTO. Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”); see also Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal
trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <countrywide-mortgage.net> domain
name is confusingly similar to Complainant’s COUNTRYWIDE mark under Policy ¶
4(a)(i), because it includes Complainant’s entire mark and simply adds a
hyphen, the generic term “mortgage,” and the generic top-level domain “.net.” Panels have concluded that the mere addition
of hyphens, generic terms, and generic top-level domains to a complainant’s
mark does not negate a finding that a domain name is confusingly similar to a
mark. Marriott Int’l, Inc. v. Café
au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the
respondent’s domain name <marriott-hotel.com> is confusingly similar to
the complainant’s MARRIOTT mark); see also JVC Americas Corp. v. Macafee,
CPR007 (CPR Nov. 10, 2000) (finding that the domain name registered by the
respondent, <jvc-america.com>, is substantially similar to, and nearly
identical to the complainant's JVC mark).
Therefore, the domain name is confusingly similar to Complainant’s
COUNTRYWIDE mark.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and
legitimate interests in the <countrywide-mortgage.net> domain
name. Complainant must first make a prima
facie case in support of its allegations, and the burden then shifts to
Respondent to show it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that,
where the complainant has asserted that the respondent has no rights or
legitimate interests with respect to the domain name, it is incumbent on the
respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <countrywide-mortgage.net>
domain name. America Online, Inc. v.
AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate
interests where the respondent fails to respond); see also BIC Deutschland GmbH & Co. KG v. Tweed,
D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has
failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c)
of the Policy, any rights or legitimate interests in the domain name”).
However, the Panel will now
examine the record to determine if Respondent has rights or legitimate
interests under Policy ¶ 4(c).
Respondent has registered the domain name under the name “James
Crespin,” and there is no other evidence in the record suggesting that
Respondent is commonly known by the <countrywide-mortgage.net>
domain name. Consequently, Respondent
has not established rights or legitimate interests in the <countrywide-mortgage.net>
domain name pursuant to Policy ¶ 4(c)(ii).
RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting
Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known
by the domain name prior to registration of the domain name to prevail"); see
also Compagnie de Saint Gobain v.
Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or
legitimate interest where the respondent was not commonly known by the mark and
never applied for a license or permission from the complainant to use the
trademarked name).
In addition, Respondent’s <countrywide-mortgage.net> domain name, which includes Complainant’s COUNTRYWIDE mark, resolves to a web directory containing links to Complainant’s direct competitors and to other content. In TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002), the panel concluded that respondent’s registration and use of confusingly similar domain names to divert Internet users to its own website did not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial fair use under Policy ¶ 4(c)(iii), and that hosting links to the complainant’s direct competitors only reinforced that conclusion.
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <countrywide-mortgage.net> domain name in bad faith pursuant to Policy ¶ 4(b)(iv), because the disputed domain name resolves to a web directory featuring links to Complainant’s direct competitors and to other content.
In Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000), the panel found that the respondent’s diversion of Internet users who were seeking the complainant’s website to its own website for commercial gain created “a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, endorsement, or affiliation of its website” and, therefore, provided evidence of bad faith registration and use in violation of Policy ¶ 4(b)(iv). In this case, Respondent is also redirecting Internet users seeking Complainant’s products and services to its own website for commercial gain, because Respondent likely receives referral fees for each consumer it diverts to other websites. Thus, Respondent is taking advantage of the confusing similarity between the disputed domain name and Complainant’s COUNTRYWIDE mark, and profiting off of the goodwill associated with the mark, which violates Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
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 <countrywide-mortgage.net> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 3, 2006
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