Quicken Loans Inc. v. VIDAL VILLEGAS
Claim Number: FA2002001883869
Complainant is Quicken Loans Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, United States. Respondent is VIDAL VILLEGAS (“Respondent”), Washington, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <quickenhomerealestate.com>, registered with FastDomain 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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 19, 2020; the Forum received payment on February 19, 2020.
On February 19, 2020, FastDomain Inc. confirmed by e-mail to the Forum that the <quickenhomerealestate.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain 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 25, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 2020 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@quickenhomerealestate.com. Also on February 25, 2020, 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 18, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the QUICKEN LOANS mark as an exclusive licensee pursuant to an agreement with the owner of the United States trademark registration described below.
Complainant submits that the QUICKEN LOANS mark symbolizes the tremendous goodwill associated with Complainant and Complainant’s goods and services and argues that the QUICKEN LOANS mark is unique, highly distinctive and extremely valuable, and has been widely promoted among members of the public.
Complainant alleges that the disputed domain name is confusingly similar to the QUICKEN LOANS mark and is likely to confuse consumers as to its connection with Complainant. Specifically, Respondent’s website and domain name uses the dominant portion of the Complainant’s mark – “QUICKEN”—followed by the generic (or at least descriptive) words “home” and “real estate” which invoke services similar to Complainant’s provision of loans for real estate purchase.
Complainant submits that prior panels have found that a domain name causes a likelihood of confusion when the respondent uses the dominant portion of the complainant’s mark and only distinguishes it by adding a generic or descriptive term. See MTD Products Inc. v. Domain Admin / Domain Privacy Guard Sociedad Anonima LTD, FA 1910001865533 (Forum Oct. 31, 2019) (“Respondent’s <cubtractors.com> domain name incorporates the dominant portion of Complainant’s [CUB CADET] mark, and adds the descriptive term ‘tractors’ . . . [but] [t]hese changes do not distinguish a domain name . . . .”).
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name alleging that the record demonstrates that Respondent is not commonly known by the disputed domain name. See, e.g., Zoetis Inc. and Zoetis Services LLC v. Cimpress Schweiz GmbH, FA1703001719875 (Forum April 6, 2017) (In finding that “the pertinent WHOIS information identifies the registrant of the domain name only as “Cimpress Schweiz GmbH,” which does not resemble the domain name[,] [the Panel] conclude[d] that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”).
Furthermore Complainant asserts that there is no relationship between Complainant and Respondent giving rise to any license, permission, or other right by which Respondent could own or use any domain name incorporating or imitating Complainant’s QUICKEN LOANS mark, nor has Complainant given Respondent permission to use the QUICKEN LOANS mark, or any variation thereof. See, e.g., Dr. Ing. h.c. F. Porsche AG v. Ron Anderson, D2004-0312 (WIPO July 2, 2004)(“neither the Respondent nor Mr. Ozkutuk can claim a legitimate right or interest in the disputed domain name . . . [because use of it] was at no point licensed or approved by the Complainant”).
Complainant also asserts that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the disputed domain name. Rather, upon information and belief, Respondent is using the disputed domain name to pose as Complainant to make fake offers to purchase real estate in an effort to surreptitiously gather confidential personal and financial information from consumers. In this regard Complainant refers to correspondence between Respondent and third parties dated December 30, 2019 and screenshots of Respondent’s website to which the disputed domain name resolves.
Complainant submits that the disputed domain name was registered and is being used in bad faith and argues that Respondent’s bad faith registration of the disputed domain name is established by the fact that the disputed domain name incorporates or plays upon Complainant’s QUICKEN LOANS mark, and the disputed domain name was acquired long after Complainant’s QUICKEN LOANS mark became well-known. See, e.g., Veuve Clicquot Ponsardin v. The Polygenix Group Co., D2000-0163 (WIPO May 1, 2000) (bad faith and a lack of legitimate interest found where a domain name “is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith”).
Complainant further argues that Respondent has targeted Complainant, which it submits is clear from the notoriety of Complainant’s QUICKEN LOANS name and mark. See, e.g., Terana, S.A. v. RareNames, WebReg, D2007-0489 (WIPO June 7, 2007) (“an inference of targeting may be drawn . . . from the circumstance that the mark is famous or well-known”).
Complainant further alleges that Respondent’s use of the disputed domain name to send fraudulent emails and to operate a sham website impersonating Complainant further demonstrates the domain name was registered and is being used in bad faith. See e.g., Zoetis Inc. and Zoetis Services LLC v. Cimpress Schweiz GmbH, FA1703001719875 (Forum April 6, 2017) (holding Respondent’s registration of the <zeotisus.com> domain name “to facilitate a scheme by which it seeks to profit illicitly by sending to Complainant a pair of emails from an email address associated with the domain name which appear to be emails from the Chief Executive Officer of Complainant and which inquire about processing an expense payment… stands as proof of Respondent’s bad faith in registering and using the domain name”.)
Complainant adds that Respondent is using the disputed domain name to pose as Complainant and to entice consumers to disclose confidential personal and financial information is in bad faith. See Chevron Intellectual Property LLC v. Katja Fyock et. al., FA1907001854119 (Forum Aug. 27, 2019) ( finding that “Respondent’s use of the domain names <chevrongcareer.org> . . . .[was] an attempt by Respondent to profit illicitly from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain names” and that “such a fraudulent scheme, commonly known as ‘phishing,’ stands as further proof of Respondent’s bad faith in registering and using the domain names”).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a provider of lending services and is the exclusive licensee of United States Registered service mark QUICKEN LOANS, registration number 2,528,282, registered on January 2002 on the Principal Register for International Class 36, which is owned by Intuit Inc. a Delaware Corporation.
Complainant uses the QUICKEN LOANS trademark in association with the provision of its lending services and maintains an Internet presence including on its primary website to which Complainant’s domain name <quickenloans.com> resolves.
The disputed domain name was registered on November 11, 2019 and resolves to a website at <www.quickenhomerealestate.com> that purports to offer real estate services which Complainant alleges is part of a fraudulent phishing scheme. This has not been refuted by Respondent who has failed to respond to the Complaint.
There is no information available about Respondent except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the FORUM’s request for verification of the registration details of the disputed domain name in the course of this proceeding.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has adduced an uncontested body of evidence illustrating its use of the QUICKEN LOANS mark in its loans business as an exclusive licensee of the abovementioned registered trademark.
The disputed domain name consists of the dominant portion of the trademark relied upon namely the element “quicken” followed by the descriptive words “home” and “real estate” which invoke services similar to Complainant’s provision of loans for real estate purchase, and the Generic Top Level Domain (gTLD) extension <.com>.
The word “quicken” is the dominant and only element of both the trademark relied upon and the disputed domain name. The other elements of the disputed domain name create no distinguishing difference and for the purposes of comparison the gTLD <.com> extension may be ignored in the circumstances of this Complaint as a domain extension, is recognized as a technical necessity for a domain name and serves no other purpose or meaning in the context.
Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name alleging that the record demonstrates that Respondent is not commonly known by the disputed domain name; that there is no relationship between Complainant and Respondent giving rise to any license, permission, or other right by which Respondent could own or use any domain name incorporating or imitating Complainant’s QUICKEN LOANS mark, nor has Complainant given Respondent permission to use the QUICKEN LOANS mark, or any variation thereof; that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the disputed domain name, but upon information and belief, Respondent is using the disputed domain name to pose as Complainant to make fake offers to purchase real estate in an effort to surreptitiously gather confidential personal and financial information from consumers.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any response to the Complaint and so has not discharged the burden. In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
There is no evidence or indication on the record to show the disputed domain name was chosen and registered for any bona fide purpose. Respondent has failed to respond to Complainant’s allegation that the disputed domain name was registered in order to target Complainant, its reputation, goodwill it has established in the QUICKEN LOANS mark as exclusive licensee. This Panel finds therefore that on the balance of probabilities the disputed domain name was registered in bad faith to take predatory advantage of Complainant’s reputation.
Complainant has alleged that Respondent is using the disputed domain name to send fraudulent emails and to operate a sham website impersonating Complainant and has provided evidence in the form of correspondence between Respondent and third parties which appears to show that using the disputed domain name as an email address, Respondent has endeavored to induce third parties to invest in real estate. Complainant submits that this is a fraudulent phishing scheme and Respondent has failed to deny this allegation.
This Panel finds that on the balance of probabilities the disputed domain name, is being used in bad faith for the purposes of a fraudulent phishing scheme while attempting to create the impression that Respondent is in some way association with Complainant.
This Panel finds therefore that on the balance of probabilities, Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship ,affiliation, or endorsement of his web site and the services Respondent purports to offer on the website and is therefore using the disputed domain name in bad faith.
In reaching this decision, this Panel has taken into account that Respondent has failed to respond to this Complaint and especially the very serious allegations of phishing which Complainant has made.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has satisfied the third and final element of the test in Policy ¶ 4(a)(i) and is entitled to succeed in this Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <quickenhomerealestate.com> domain name be TRANSFERRED from Respondent to Complainant.
______________________
James Bridgeman SC
Panelist
Dated: March 19, 2020
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