LowerMyBills, Inc. v. Precision Funding Corp.
Claim Number: FA0511000592555
Complainant is LowerMyBills, Inc. (“Complainant”), represented by Sean F. Heneghan, 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is Precision Funding Corp. (“Respondent”), 2132 Case Parkway North, Twinsburg, OH 44087.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <helplowermybills.com>, registered with Bulkregister, 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 Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 7, 2005; the National Arbitration Forum received a hard copy of the Complaint on November 10, 2005.
On November 8, 2005, Bulkregister, Llc. confirmed by e-mail to the National Arbitration Forum that the <helplowermybills.com> domain name is registered with Bulkregister, Llc. and that Respondent is the current registrant of the name. Bulkregister, Llc. has verified that Respondent is bound by the Bulkregister, Llc. 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 November 14, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 5, 2005 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@helplowermybills.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 9, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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:
1. Respondent’s <helplowermybills.com> domain name is confusingly similar to Complainant’s LOWERMYBILLS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <helplowermybills.com> domain name.
3. Respondent registered and used the <helplowermybills.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
C. In its Additional Submission, Complainant submits argument from a recent and similar UDRP proceeding LowerMyBills, Inc. v. Douglas Solether, FA 561089 (Nat. Arb. Forum November 15, 2005) (<lowermybill.info>domain name, confusingly similar to Complainant’s LOWERMYBILLS.COM trademark, used to direct consumer’s to respondent’s own commercial website featuring competing products and services was registered and used in bad faith).
Complainant, LowerMyBills, Inc., provides comparison shopping and consumer-related information through its website in the areas of home refinance, home purchase and debt consolidation lending services. Complainant owns trademarks in several countries and with the United States Patent and Trademark Office (“USPTO”) for its LOWERMYBILLS.COM mark (Reg. No. 2,519,342 issued December 18, 2001). Complainant began using its LOWERMYBILLS.COM mark as early as February 7, 2000.
Respondent registered the <helplowermybills.com> domain name on December 5, 2005. The domain name resolves to a website that offers mortgage lending services similar to the comparison shopping services offered by Complainant.
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 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.
The Panel finds that Complainant’s registration of its
LOWERMYBILLS.COM mark with the USPTO is sufficient to establish Complainant’s
rights in the mark in connection with Policy ¶ 4(a)(i). See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003)
(“Complainant's federal trademark registrations establish Complainant's rights
in the BLIZZARD mark.”); see also Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”).
Complainant asserts that the <helplowermybills.com> domain name incorporates Complainant’s LOWERMYBILLS.COM mark in its entirety and merely adds the generic term “help.” The addition of a generic or descriptive term does not differentiate the domain name from Complainant’s mark. Thus, the domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporates the VIAGRA mark in its entirety, and deviates only by the addition of the word “bomb,” the domain name is rendered confusingly similar to the complainant’s mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
The initial burden under Policy ¶ 4(a)(ii) is on Complainant to prove that Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests pursuant to the directions provided in Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel finds that Complainant has presented a prima facie case, and the Panel now chooses to consider whether an evaluation of all the evidence demonstrates rights or legitimate interests for Respondent under Policy ¶ 4(c).
Complainant contends that nothing in the record indicates that Respondent is commonly known by the <helplowermybills.com> domain name. The WHOIS information for the domain name identifies Respondent as “Precision Funding Corp.” Furthermore, Complainant asserts that no affiliation of any kind exists between it and Respondent, and Complainant has not licensed or authorized Respondent to use the LOWERMYBILLS.COM mark in any way. The Panel finds that Respondent has not established rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
Respondent is using the <helplowermybills.com> domain name to operate a website in connection with mortgage lending services similar to those offered by Complainant in its business of providing comparison shopping to consumers. The Panel does not consider it a bona fide offering of goods or services under Policy ¶ 4(c)(i) where Respondent is using Complainant’s LOWERMYBILLS.COM mark to operate a website that offers competing services. Furthermore, such competing use does not constitute a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The <helplowermybills.com> domain name is being used to operate a website that offers services that compete with those of Complainant. The Panel finds that Respondent registered the disputed the domain name to disrupt the business of a competitor, which constitutes bad faith registration and use under Policy¶ 4(b)(iii). See Lambros v. Brown, FA 198963 (Nat. Arb. Forum Nov. 19, 2003) (finding that the respondent registered a domain name primarily to disrupt its competitor when it sold similar goods as those offered by the complainant and “even included Complainant's personal name on the website, leaving Internet users with the assumption that it was Complainant's business they were doing business with”); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
Respondent’s use of the <helplowermybills.com> domain name to operate a commercial website that offers services in competition with Complainant suggests that Respondent is using Complainant’s LOWERMYBILLS.COM mark in the domain name to attract Internet users through a likelihood of confusion as to Complainant’s affiliation with the resulting website. The Panel determines that Respondent’s attempt to benefit commercially from the goodwill associated with Complainant’s registered mark is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant).
The Panel finds that Complainant has 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 <helplowermybills.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 22, 2005
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