Rocket Mortgage, LLC v. Trevor Duran
Claim Number: FA2209002013561
Complainant is Rocket Mortgage, LLC (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, US. Respondent is Trevor Duran (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <rocketmortgage.biz> and <rocketmortgage.finance> 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.
The Honorable Neil Anthony Brown KC as Panelist.
Complainant submitted a Complaint to Forum electronically on September 26, 2022; Forum received payment on September 26, 2022.
On November 3, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <rocketmortgage.biz> and <rocketmortgage.finance 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 November 4, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 25, 2022 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@rocketmortgage.biz, postmaster@rocketmortgage.finance. Also on November 4, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 made the following contentions:
Complainant offers mortgage
lending services. Complainant submits that it has rights in the ROCKET MORTGAGE
mark based upon registration of the mark with the United States Patent and
Trademark Office (“USPTO”) (e.g., Reg. no. 5,013,488, registered August
2, 2016). See Compl. Ex. D. Respondent’s <rocketmortgage.biz>
and <rocketmortgage.finance> (the “Disputed Domain Names”) are
confusingly similar to Complainant’s ROCKET MORTGAGE trademark because they incorporate the mark in
its entirety and adds the generic top-level domain names (“gTLD”) “.finance”
and “.biz”.
Respondent does not have rights or legitimate interests
in the Disputed Domain Names. Respondent is not licensed or authorized to use
Complainant’s ROCKET
MORTGAGE mark and is not commonly known by
the Disputed Domain Names. Respondent also does not use the Disputed Domain Names
for any bona fide offering of goods or services or legitimate
noncommercial or fair use. Rather, Respondent attempts passing off as
Complainant. Respondent offers the Disputed Domain Names for sale.
Respondent
registered and uses the Disputed Domain Names in bad faith. Respondent registered and uses
the Disputed Domain Names with intent to sell. Respondent had actual knowledge of Complainant’s
rights in the mark due to the Disputed Domain Names redirecting to a complaint
site. Respondent uses the Disputed Domain Names to redirect to a complaint
site.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company engaged in the provision of mortgage lending services.
2. Complainant has established its rights in the ROCKET MORTGAGE mark based upon registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. no. 5,013,488, registered August 2, 2016).
3. Respondent registered the Disputed Domain Names on June 5, 2022.
4. Respondent has attempted to pass
itself off as Complainant and has also offered the domain names for sale.
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”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the ROCKET MORTGAGE mark based upon registration of the mark with the USPTO (e.g., Reg. no. 5,013,488, registered August 2, 2016). See Compl. Ex. D. Registration of a mark with the USPTO is considered a valid showing of rights under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”); see also Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Since Complainant has provided evidence of registration of the ROCKET MORTGAGE mark with the USPTO, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the Disputed Domain Names are identical or confusingly similar to Complainant’s ROCKET MORTGAGE mark. Complainant argues that the Disputed Domain Names are confusingly similar to Complainant’s ROCKET MORTGAGE trademark because they incorporate the mark in its entirety and add the gTLD “.finance” and “.biz”. The affixation of a gTLD to a domain name is irrelevant under Policy ¶ 4(a)(i). See sleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Therefore, the panel finds the Disputed Domain Names are confusingly similar to Complainant’s ROCKET MORTGAGE mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s ROCKET MORTGAGE mark and to use it in its domain names adding only the two gTLDs “.finance” and “.biz” to the mark;
(b) Respondent registered the Disputed Domain Names on June 5, 2022;
(c) Respondent has attempted to pass itself off as Complainant and has also offered the domain names for sale;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent does not have rights or legitimate interests in the Disputed Domain Names because Respondent is not licensed or authorized to use Complainant’s ROCKET MORTGAGE mark and is not commonly known by the Disputed Domain Names. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information for the disputed domain names lists the registrant as “Trevor Duran.” See Registrar Verification Emails. Therefore, the Panel finds Respondent is not commonly known by the Disputed Domain Names per Policy ¶ 4(c)(ii);
(f) Complainant contends Respondent also does not use the Disputed Domain Names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass itself off as Complainant. A Respondent’s replicating a complainant’s website is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Here, Complainant provides screenshots of Respondent’s resolving webpage, showing a quote from the CEO of Rock Connections. See Compl. Ex. J. As the Panel agrees, it finds Respondent does not provide a bona fide offering of goods or services per Policy ¶ 4(c)(i) or use the Disputed Domain Names for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii);
(g) Complainant argues Respondent offers the Disputed Domain Names for sale. A general offer for sale provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name. See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Here, Complainant provides screenshots of Respondent’s offers of the Disputed Domain Names for sale. See Compl. Ex. K. Thus, the Panel finds Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the Disputed Domain Names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the Disputed Domain Names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the Disputed Domain Names were registered and used in bad faith. That is so for the following reasons.
First, Complainant argues Respondent registered and uses the Disputed Domain Names with intent to sell them. A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i). See Airbnb, Inc. v. 张昕 / 何青玉, FA 1786279 (Forum June 18, 2018) (“Complainant provides a screenshot of the disputed domain name’s resolving webpage, where Respondent offers to sell the domain name for €9,999 [. . .] The Panel therefore finds that Respondent registered and is using the <airbnb.pro> domain name in bad faith per Policy ¶ 4(b)(i).”). Here, the Panel notes Complainant provides screenshots of Respondent’s offers of the Disputed Domain Names for sale. See Compl. Ex. K. Thus, the Panel finds Respondent registered and uses the Disputed Domain Names in bad faith per Policy ¶ 4(b)(i).
Secondly, Complainant submits Respondent had actual knowledge of Complainant’s rights in the mark due to the Disputed Domain Names redirecting to a complaint site. Per Policy ¶ 4(a)(iii), actual knowledge of a complainant’s trademark rights is sufficient to establish bad faith and can be demonstrated by the use the respondent makes of the domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Here, the Panel notes Complainant provides screenshots of Respondent’s offers of the Disputed Domain Names for sale. See Compl. Ex. K. As the Panel agrees, it finds Respondent registered and uses the Disputed Domain Names in bad faith per Policy ¶ 4(a)(iii).
Thirdly, Complainant contends Respondent uses the Disputed Domain Names to redirect to a complaint site. Even if the goal of providing a free speech forum for criticizing complainant may be legitimate, that goal cannot be reached by usurping complainant’s marks and posing as complainant pursuant to Policy ¶ 4(a)(iii). See Diners Club Int’l, Ltd. v. Infotechnics Ltd., FA 169085 (Forum Aug. 20, 2003) (“Respondent’s registration and use of a domain name nearly identical to Complainant’s mark to criticize Complainant’s business practices is evidence of registration and use of the <diners-club.net> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”). Here, the Panel again notes Complainant provides screenshots of Respondent’s offers of the Disputed Domain Names for sale. See Compl. Ex. K. As the Panel agrees, it finds Respondent registered and uses the Disputed Domain Names in bad faith per Policy ¶ 4(a)(iii).
Fourthly, in addition and having regard to the totality of the evidence, the Panel
finds that, in view of Respondent’s registration of the disputed domain names using the ROCKET MORTGAGE mark and in view of the conduct that Respondent has engaged in when using the Disputed Domain Names, Respondent registered and used them in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rocketmortgage.biz> and <rocketmortgage.finance> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown KC
Panelist
Dated: December 3, 2022
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