Roundpoint Mortgage Servicing Corporation v. Rene Acevedo
Claim Number: FA1802001772179
Complainant is Roundpoint Mortgage Servicing Corporation (“Complainant”), represented by Lori T. Milvain, Florida, USA. Respondent is Rene Acevedo (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <roundpointmortgagepayment.com>, registered with NameCheap, Inc.
The undersigned certifies that he 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 15, 2018; the Forum received payment on February 15, 2018.
On February 16, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <roundpointmortgagepayment.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 16, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 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@roundpointmortgagepayment.com. Also on February 16, 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 March 13, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it uses its ROUNDPOINT mark for its mortgage banking, mortgage lending, mortgage planning, real estate, insurance, financial and related services. Complainant registered its mark and logo in the United States in 2014.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s ROUNDPOINT mark, as the domain name merely adds the descriptive terms “mortgage” and “payment” to the fully-incorporated mark. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent should be regarded as having no rights or legitimate interests in the disputed domain name. Based on the WHOIS information and Respondent’s lack of permission, authorization, or license to use Complainant’s mark, Respondent is not commonly known by the disputed domain name. Respondent is not using the at issue domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent’s uses the domain name to pass off as Complainant and purport to offer services competitive with Complainant’s business and links to competitors of Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent’s has registered and used the disputed domain name in bad faith. Respondent disrupts Complainant’s business, and intentionally creates a likelihood of confusion with Complainant’s marks for commercial gain. Lastly, Respondent had actual knowledge of Complainant’s rights to its mark at the time Respondent registered and subsequently used the domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ROUNDPOINT and a related logo with rights dating back to at least 2014.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a website which passes off as Complainant, displays Complainant’s mark and logo, and features links to competitors of Complainant’s business. Respondent knew of Complainant’s mark when he registered the disputed domain name.
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.”).
The disputed domain name is confusingly similar to the ROUNDPOINT mark, as Respondent merely added the descriptive terms “mortgage” and “payment” to the mark. The addition of generic or descriptive terms to a mark to create a domain name does not usually distinguish the two for purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Consequently, the Panel finds that the disputed domain name is confusingly similar to Complainant’s ROUNDPOINT mark, in the sense of the Policy.
Complainant has not authorized Respondent to use the ROUNDPOINT mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant of the disputed domain name as “Rene Acevedo” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent does not use the disputed domain name in conjunction with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to pass off as Complainant in order to link to competitors of Complainant and to offer competing services. Specifically, the disputed domain name resolves to a website which displays Complainant’s marks and logos and features links to competitors of Complainant’s business. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”); see also CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”); General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business 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).”). Accordingly, the Panel finds that Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant in order to provide competing links and services. This can be demonstrative of bad faith per Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Lenovo (Beijing) Limited Corporation China v. jeonggon seo, FA1411001591638 (Forum Jan. 16, 2015) (finding that where the complainant operated in the computer industry and the respondent used the disputed domain name to offer competing computer related links, the respondent was disrupting the complainant’s business offerings in violation of Policy ¶¶ 4(b)(iii) and (iv)); Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Consequently, the Panel finds that Respondent’s use of the disputed domain name indicates it registered and used the name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent had actual notice of Complainant’s rights before registering the disputed domain name: as already noted, Respondent’s logo on the resolving website is almost identical to Complainant’s logo on its own website, and the resolving website references Complainant by name. This is sufficient to demonstrate bad faith. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Therefore, the Panel finds bad faith registration and use on these grounds also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <roundpointmortgagepayment.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 13, 2018
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