Wells Fargo Home Mortgage v. domains Ventures
Claim Number: FA0610000810215
Complainant is Wells Fargo Home Mortgage (“Complainant”), represented by Brian J. Laurenzo, of Dorsey & Whitney LLP, 801 Grand Ave., Suite 3900, Des Moines, IA 50309. Respondent is domains Ventures (“Respondent”), 136 Xiaoxue Road, Xiamen, Fujian 361001, China.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <yourwellsmortgage.com>, registered with Moniker Online Services, 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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 29, 2006; the National Arbitration Forum received a hard copy of the Complaint on October 4, 2006.
On October 4, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <yourwellsmortgage.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. 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 5, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 25, 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@yourwellsmortgage.com 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, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), 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 <yourwellsmortgage.com> domain name is confusingly similar to Complainant’s WELLS FARGO and WELLS FARGO HOME MORTGAGE marks.
2. Respondent does not have any rights or legitimate interests in the <yourwellsmortgage.com> domain name.
3. Respondent registered and used the <yourwellsmortgage.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Wells Fargo Home Mortgage, holds registrations with the United States Patent and Trademark Office (“USPTO”) for the WELLS FARGO (Reg. No. 779,187 issued October 27, 1964) and WELLS FARGO HOME MORTGAGE (Reg. No. 2,584,451 issued June 25, 2002) marks. Complainant utilizes the marks in connection with its banking and financial services business, including providing home mortgages. Complainant utilized its marks in its registered domain names, <wellsfargo.com> and <wellsfargohomemortgage.com>.
Respondent registered the <yourwellsmortgage.com> domain name on October 11, 2003. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website which is composed of links to third-party websites. Many of the links are to banking, mortgage and financing sites in direct competition with Complainant, while others link to content unrelated to 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."
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’s USPTO registrations of the WELLS FARGO and
WELLS FARGO HOME MORTGAGE marks predate Respondent’s registration of the
disputed domain name and establish Complainant’s rights in the marks. The Panel finds that Complainant has
established rights in the marks pursuant to Policy ¶ 4(a)(i). 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."); see also 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.”).
Respondent’s <yourwellsmortgage.com>
domain name is confusingly similar to Complainant’s WELLS FARGO and WELLS
FARGO HOME MORTGAGE marks. The disputed
domain name includes the terms “wells” and “mortgage,” which are elements of
Complainant’s mark. The disputed domain
name also adds the generic descriptive term “your,” which is not sufficient to
distinguish the disputed domain name from Complainant’s marks. The Panel finds that the disputed domain
name is confusingly similar to Complainant’s marks pursuant to Policy ¶
4(a)(i). See Sony Kabushiki Kaisha
v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the
addition of an ordinary descriptive word . . . nor the
suffix ‘.com’ detract from the overall impression of the dominant part of the
name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is
satisfied); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat.
Arb. Forum Sept. 5, 2000) (finding that the “domain name MYSPORTSCENTER.COM
registered by Respondent is confusingly similar to Complainant’s SportsCenter
mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or
legitimate interests in the <yourwellsmortgage.com> domain
name. Complainant’s assertion
establishes a prima facie case pursuant to the Policy and shifts the
burden to Respondent to demonstrate that it has rights or legitimate interests
in the disptued domain name.
Respondent’s opportunity to demonstrate, with evidence and arguments,
that it has rights or legitimate interests in the disptued domain name is to
file a Response. Respondent’s failure
to do so suggests to the Panel that Respondent may lack those rights or
legitimate interests. However, the
Panel will examine the available evidence to determine whether Respondent has rights
or legitimate interests under Policy ¶ 4(c).
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.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000)
(finding that the respondent has no rights or legitimate interests in the
domain name because the respondent never submitted a response or provided the
panel with evidence to suggest otherwise).
Respondent is using the disputed domain name to redirect
Internet users to Respondent’s website filled with links to third-party
websites. Such use is not a bona
fide offering of goods or services as contemplated by Policy ¶ 4(c)(i)
because Respondent’s website does not provide a good or service. Such use is also not a legitimate
noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii) because
Respondent is presumably receiving pay-per-click referral fees from the linked
websites. The Panel finds that Respondent’s
use does not establish rights or legitimate interests pursuant to Policy ¶¶
4(c)(i) or (iii). See Computer Doctor Franchise Sys., Inc. v.
Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the
respondent’s website, which is blank but for links to other websites, is not a
legitimate use of the domain names); see also TM Acquisition Corp. v. Sign
Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the
respondent’s diversionary use of the complainant’s marks to send Internet users
to a website which displayed a series of links, some of which linked to the
complainant’s competitors, was not a bona fide offering of goods or
services).
There is no available evidence that Respondent is commonly
known by the disptued domain name.
Respondent’s WHOIS information identifies Respondent as “domain
Ventures,” an unrelated name. The Panel
finds that Respondent is not commonly known by the disptued domain name and
thus, lacks rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Am. W.
Airlines, Inc. v. Paik, FA 206396 (Nat.
Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name
under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent
is not commonly known by the [<awvacations.com>] domain name.”); see
also Wells Fargo & Co. v. Onlyne Corp.
Services11, Inc., FA 198969 (Nat. Arb.
Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed
domain [name], one can infer that Respondent, Onlyne Corporate Services11, is
not commonly known by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <yourwellsmortgage.com> domain
name to redirect Internet users to its website composed of links to third-party
websites offering banking, mortage and financial goods and services in
competition with Complainant. Internet
users misdirected to Respondent’s website may follow the posted links to
competing websites and do business with Complainant’s competitors instead of
with Complainant. The Panel finds that
such use disrupts Complainant’s business and is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding the respondent acted in bad faith by attracting
Internet users to a website that competes with the complainant’s business); see
also Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)).
Respondent’s <yourwellsmortgage.com>
domain name is confusingly similar to Complainant’s WELLS FARGO and WELLS
FARGO HOME MORTGAGE marks, potentially confusing Internet users. Internet users seeking Complainant’s genuine
website may instead find themselves redirected to Respondent’s website. Misdirected Internet users may be confused
as to the source or affiliation of Respondent’s website because of the
confusing similarity of the disputed domain name combined with the links on the
website which appear to offer goods or services Internet users may expect
Complainant to offer. Respondent is
presumably profiting from this confusion by collecting pay-per-click referral
fees from the posted links. The Panel
finds that such use is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091
(WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the
respondent’s domain name resolved to a website that offered links to
third-party websites that offered services similar to the complainant’s
services and merely took advantage of Internet user mistakes); see also TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although
Complainant’s principal website is <century21.com>, many Internet users
are likely to use search engines to find Complainant’s website, only to be
mislead to Respondent’s website at the <century21realty.biz> domain name,
which features links for competing real estate websites. Therefore, it is likely that Internet users
seeking Complainant’s website, but who end up at Respondent’s website, will be
confused as to the source, sponsorship, affiliation or endorsement of
Respondent’s website.”).
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 <yourwellsmortgage.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: November 14, 2006
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