loanDepot.com, LLC v. Anthony Salerno
Claim Number: FA1805001785834
Complainant is loanDepot.com, LLC (“Complainant”), represented by Hani Sayed of Rutan & Tucker LLP, California, USA. Respondent is Anthony Salerno (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mellohome.info> and <homemello.com>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 9, 2018; the Forum received payment on May 9, 2018.
On May 10, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <mellohome.info> and <homemello.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 May 10, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 30, 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@mellohome.info and postmaster@homemello.com. Also on May 10, 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. Respondent sent two e-mails to the Forum, see below.
On June 4, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a giant in the world of non-bank consumer lending for home mortgages, refinance, equity, and personal loan products. Nationally, Complainant is one of the top 5 largest lenders by volume, after Wells Fargo, Quicken Loans, Bank of America, and JP Morgan Chase. Complainant has common law rights in the MELLO and MELLO HOME marks, as it has established a secondary meaning. Further, Complainant has filed multiple applications in the United States for the MELLO and MELLO HOME marks, in, respectively, March 10 2017 and March 22, 2018.
Complainant alleges that the disputed domain names are confusingly similar to Complainant’s marks as both domain names entirely incorporate Complainant’s marks and merely add a generic top-level domain (“gTLD”). Additionally, the <homemello.com> domain name transposes the “mello” and “home” words in Complainant’s mark.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain names. Respondent has never been granted license or permission for the use of Complainant’s marks. Respondent is not commonly known by the disputed domain name based on the WHOIS information of record. Further, Respondent is a former employee of Complainant’s business. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name redirects to a website which offers mortgage lending services in direct competition with Complainant.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith as Respondent owns a number of domain names beyond that typically necessary for an ordinary business. Respondent’s bad faith is further evidenced through using the disputed domain name to disrupt Complainant’s business, and to attract, for commercial gain, Internet users to Respondent’s competing website. Finally, Respondent is a former employee of Complainant’s business, and was thus undoubtedly aware of Complainant’s marks prior to opportunistically registering the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding. In his e-mails to the Forum Respondent states, in pertinent part: “I would like to cancel my registration and/or transfer the registration of the domains in question to the complainants” and “It is my intention to immediately comply with your request for me to transfer the Domain Name registrations, mellohome.info and homemello.com to loanDepot.com, LLC.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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 the present case, the parties have both asked for the domain names to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <mellohome.info> and <homemello.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 4, 2018
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