Mortgage Research Center LLC v. Russell Miranda
Claim Number: FA0705000993017
Complainant is Mortgage Research Center LLC (“Complainant”), represented by Kim
Force, of Rotts & Gibbs, LLC, 1001 E Walnut
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <mortgageresearchcenter.org>, registered with eNom, 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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 25, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 29, 2007.
On June 1, 2007, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <mortgageresearchcenter.org> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 June 8, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 28, 2007 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@mortgageresearchcenter.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 6, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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:
This Complaint is based on the following factual and legal
grounds:
[a.] The domain name is identical or confusingly
similar to a trademark or service mark in which Complainant has rights:
Complainant’s mark is
Respondent has registered the domain <mortgageresearchcenter.org>,
which is virtually identical to both Complainant’s trademark
Admittedly, Complainant’s trademark is descriptive of its services, and therefore, it does not have the status of a “strong” trademark. However, the manner in which Respondent is using the mark on the domain name in dispute, as detailed below, nonetheless, entitles Complainant to the relief requested herein.
[b.] Respondent has no rights or legitimate
interests in respect of the domain name that is the subject of this Complaint.
Respondent does not
operate a legitimate business on the domain that is the subject of this
Complaint. To Complainant’s knowledge,
Respondent does not offer any legitimate mortgage-related services. Rather, Respondent copied Complainant’s
entire website* several months ago and posted it under Respondent’s domain
name. Originally, Respondent posted
different contact information on his website.
However, Respondent has recently changed this to include Complainant’s
contact information, except that Respondent’s site lists a different e-mail
address of admin@mortgagereasearch.org. The
result is that while clients who call the number on Respondent’s website may
actually reach Complainant, clients who attempt to contact Complainant by e-mail
using the address listed on Respondent’s site would instead reach
Respondent. Respondent is thus
circumventing e-mails from potential clients for Complainant’s business, and is
consequently causing harm to Complainant’s business.
*Please note that
Complainant recently modified its website to reflect a new corporate
image. While the overall appearances of
the two sites are now different, the majority of the content on both sites
remains identical.
[c.] The domain name should be considered
as having been registered and being used in bad faith.
The information included on “Whois.net” regarding the registration of the domain name in question appears to be fraudulent. Complainant has tried unsuccessfully to contact Respondent. Providing false information with respect to the registration of a domain name supports a finding of bad faith.
The fact that Respondent copied Complainant’s entire website
further supports a finding that the domain name was registered and is being
used in bad faith. Respondent cannot
prove any legitimate reason for copying Complainant’s content and posting an
identical website at a confusingly similar domain name.
Respondent is also engaging in consumer
deception by claiming credentials that it does not have. Complainant has achieved numerous credentials
with respect to its mortgage services, some of which include:
Respondent’s
counterfeit website also includes all of these claims, as well as customer
testimonials. Respondent is thus
misleading the public into believing that Respondent’s site is owned and
operated by a legitimate business that has earned these outstanding credentials
and has serviced many satisfied customers.
Allowing Respondent’s continued use of the domain name will only serve
to tarnish Complainant’s trademark and reputation in the industry.
[d.] Additional Considerations:
(i.) To
Complainant’s knowledge, Respondent has not, heretofore, made any legitimate
use of the disputed domain name, nor has Respondent engaged in any demonstrable
preparations to use the domain name or a name corresponding to the domain name
in connection with a bona fide offering of goods or services.
(ii.) To
Complainant’s knowledge, Respondent has not been commonly known by the name “
(iii.) Respondent
is not now making, and has not made in the past, any legitimate noncommercial
or fair use of the domain name, without intent for commercial gain to
misleadingly divert consumers or to tarnish the trademark at issue.
(iv.) Respondent has registered the domain name
at issue in order to prevent Complainant from reflecting the mark in a
corresponding domain name. Given the
manner in which Respondent has blatantly copied Complainant’s entire website,
it is suspected that Respondent has engaged in a pattern of such conduct.
(v.) It is unclear exactly how Respondent
profits by using the domain name at issue, but it is apparent that Respondent
has intentionally attempted to attract Internet users to Respondent’s website
by creating a likelihood of confusion with Complainant’s mark and website as to
the source, sponsorship, affiliation, or endorsement of Respondent’s website.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mortgage Research Center LLC, provides
mortgage-related products and services under the
Complainant has continuously used the
Respondent’s <mortgageresearchcenter.org> domain name, which it registered on January 16, 2006, resolves to a website virtually identical to Complainant’s own previous website at the <mortgageresearchcenter.com> domain name. Until recently, Respondent listed its own contact information, but the website now includes Complainant’s contact information but with Respondent’s e-mail address.
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 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.
Even though the USPTO has approved Complainant’s mark for
registration on the Supplemental Register, it had not yet issued a registration
number when Complainant filed this Complaint.
This means Complainant’s mark cannot be considered a “registered mark.” Nevertheless, the Panel finds Complainant
need not hold a trademark registration for the
Complainant is one of the top mortgage lenders in the nation
and has continuously done business under the
The <mortgageresearchcenter.org>
domain name is an exact replica of Complainant’s
The Panel concludes Complainant satisfied Policy ¶ 4(a)(i).
Complainant alleges Respondent has no rights or legitimate
interests in the <mortgagereserachcenter.org>
domain name. The burden of proof is
initially upon Complainant to establish a prima
facie case supporting these allegations.
If Complainant establishes a prima
facie case, the burden of proof then shifts to Respondent to show that it
does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL
LLC v. Gerberg, FA
780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must 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 interest in the
subject domain names.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13,
2007) (finding that once a prima facie case has been established by the
complainant under Policy ¶ 4(c), the burden then shifts to the respondent to
demonstrate its rights or legitimate interests in the disputed domain name).
In the instant proceeding, the Panel finds that Complainant has established a prima facie case in support of its allegations.
By failing to submit a Response, the Panel presumes Respondent has no rights or legitimate interests in the <mortgageresearchcenter.org> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). Nevertheless, the Panel will consider the evidence in the record with respect to the factors listed in Policy ¶ 4(c) before making this determination.
Respondent appears to be known as “Russell Miranda,” because this is the name listed in the WHOIS database as the registrant of the <mortgageresearchcenter.org> domain name. After reviewing the available evidence, the Panel finds no indication Respondent is commonly known by the domain name in dispute. As a result, Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Respondent is using the <mortgageresearchcenter.org>
domain name, which wholly incorporates Complainant’s
The Panel concludes Complainant satisfied Policy ¶ 4(a)(ii).
Because Respondent is operating a website virtually
identical to Complainant’s own website, Respondent has registered and is using
the disputed domain name for the primary purpose of disrupting Complainant’s
business under the
Respondent has registered and is using the <mortgageresearchcenter.org> domain name in bad faith pursuant to Policy ¶ 4(b)(iv), because Respondent is attempting to attract, for commercial gain, Internet users to a website virtually identical to Complainant’s website at the <mortgageresearchcenter.com> disputed domain name. In Hunter Fan Co. v. MSS, FA 98067 (Nat. Arb. Forum Aug. 23, 2001), the panel found bad faith registration and use where the respondent used the disputed domain name to sell the complainant’s products without permission and mislead Internet users by implying that the respondent was affiliated with the complainant. Likewise, in DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000), the panel found that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the impression that the complainant endorsed and sponsored the respondent’s website. Similarly, Respondent is implying an affiliation with Complainant, and consumers seeking Complainant’s mortgage products and services may become confused when encountering Respondent’s website. Therefore, Respondent’s diversion of Internet users to its own website for commercial gain constitutes bad faith registration and use according to Policy ¶ 4(b)(iv).
The Panel concludes Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mortgageresearchcenter.org> domain name be TRANSFERRED from Respondent to Complainant.
Dated: Monday, July 9, 2007
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