PN II, Inc. v. Name Redacted
Claim Number: FA2008001908242
Complainant is PN II, Inc. (“Complainant”), represented by Christopher Burkett, United States. Respondent is [Redacted] (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pultegroup.us>, registered with NameCheap, 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 13, 2020; the Forum received payment on August 13, 2020.
On August 14, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <pultegroup.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On August 17, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 8, 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@pultegroup.us. Also on August 17, 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 September 15, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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 usTLD 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 usTLD Policy, usTLD 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, PN II, Inc., is a company associated with residential home construction, real estate, and mortgage lending services. Complainant asserts rights in the trademark PULTEGROUP through its use in commerce since 1969 and its registration of the mark with the United States Patent and Trademark Office (“USPTO”) dating back to 2011. Respondent’s <pultegroup.us> domain name, registered on March 18, 2020, is confusingly similar to Complainant’s mark, as it incorporates the mark in its entirety and merely adds the “.us” country-code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <pultegroup.us> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use the PULTEGROUP mark, as required per Policy ¶ 4(c)(iii). Additionally, nothing in the available evidence indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). Further, Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) and (iv). Rather, Respondent uses the domain name to resolve to a parked page showing pay-per-click advertising links to competing websites.
Respondent registered or uses the <pultegroup.us> domain name in bad faith. The domain name is being used to divert Internet users to a commercial parking page with competing hyperlinks. Respondent also uses false WHOIS information, which further shows its bad faith. Finally, Respondent registered the disputed domain name with knowledge of Complainant and its rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent 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."
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 asserts rights in the PULTE and PULTEGROUP trademarks through its registration of the marks with the USPTO. Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”) Here, Complainant provides copies of some of its USPTO registration certificates. Therefore, the Panel finds that Complainant has rights in the PULTE and PULTEGROUP marks under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <pultegroup.us> domain name is confusingly similar to Complainant’s mark because the disputed domain name incorporates the PULTE and PULTEGROUP marks in their entirety and adds the “.us” ccTLD. The addition of a ccTLD to a trademark is typically not sufficient to distinguish a disputed domain name from that mark. See TTT Moneycorp Limited v. Mebrat Biniam, FA 1737316 (Forum July 22, 2017) (“The Panel finds that the disputed domain name, <moneycorp.us>, is confusingly similar to Complainant’s valid and subsisting trademark, MONEYCORP. Complainant has adequately pled its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely adding the g TLD ‘.us’ to the trademark. This is inadequate to distinguish the disputed domain name from Complainant’s trademark.”). As the <pultegroup.us> domain name incorporates the entirety of Complainant’s marks and adds only the “.us” ccTLD, the Panel finds that the disputed domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that 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”).
Complainant argues that Respondent does not have rights or legitimate interests in the <pultegroup.us> domain name. Complainant asserts that Respondent is not commonly known by the disputed domain name, nor has respondent been authorized by Complainant to use the PULTE or PULTEGROUP marks. The panel may use relevant WHOIS information to guide its determination of whether a respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by that name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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 name lists a registrant name that bears no resemblance to the disputed domain name and nothing in the record indicates that Respondent is licensed to use Complainant’s mark or is known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain.
Additionally, Complainant argues that Respondent has no rights in a mark identical to the disputed domain name. Lack of rights in an identical mark reflects a lack of rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel concludes that Respondent lacks rights and legitimate interests in the disputed domain name per Policy ¶ 4(c)(i).
Further, Complainant argues that Respondent is not making a bona fide offering of goods or services via the disputed domain name, nor a legitimate noncommercial or fair use, but rather uses the disputed domain to host competing pay-per-click links. Use of a confusingly similar domain name to redirect users to a website with monetized hyperlinks is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name under Policy ¶¶ 4(c)(ii) and (iv). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA 1613867 (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 webpage and it shows what appear to be pay-per-click links titled “Pulte Homes”, “New Constructions Home”, “Custom Home Builders”, and others. Respondent has not filed a response nor made any other submission in this case and so it does not dispute Complainant’s assertions. In light of the available evidence, the Panel finds that Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv).
Complainant asserts that Respondent had actual knowledge of Complainant’s rights in the mark. Actual knowledge can form a foundation upon which to build a case for bad faith under Policy ¶ 4(a)(iii) and may be established through a mark’s notoriety, along with the complainant’s ownership. See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”). Complainant states that it “is one of the largest homebuilding companies in the United States and currently operates in approximately fifty markets”. It goes on to claim that its PULTE and PULTEGROUP marks “are well-known marks universally associated with Complainant” based upon its having made “extensive us of the marks” and notes their “widespread reputation”. However, Complainant provides no supporting evidence for any of these claims (trademark registrations only evidence the existence of rights, not the extent of a mark’s scope or its reputation). However, Complainant also points out that its distinctive marks as well as numerous references to its home construction field of business appear repeatedly in the website to which the <pultegroup.us> domain name resolves and that Respondent uses the entirety of these marks in its domain name. Respondent has not participated in this case and so it does not rebut Complainant’s claims. Upon the evidence before it, this Panel finds it more likely than not that Respondent had actual knowledge of Complainant’s rights at the time it registered the disputed domain name.
Complainant next argues that respondent has registered and/or used the <pultegroup.us> domain name in bad faith because Respondent uses the domain name to host competing third party links. Use of a disputed domain name simply to display click-through links is evidence of bad faith attraction for commercial gain per Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). As previously noted, Complainant provides screenshots of the resolving webpage and the pay-per-click links showing mention of Complainant and others in the home building business. Therefore, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Finally, the Panel notes that using false or misleading WHOIS information is also generally considered evidence of bad faith under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA 1614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”) The Panel notes that the individual named in the WHOIS record for the disputed domain name appears to be a victim of identity theft by Respondent who used its name and address as an alias to register the domain name. Complainant submits a copy of a letter from the individual named in the WHOIS record stating that “I did not register that domain name. * * * Someone registered a bunch of domain names using my publicly available business name and address to make it look like we did it but we did not” and noting that “I have been contacted by the FBI [Federal Bureau of Investigation] twice now regarding this same type of criminal activity…” Further, Complainant submits a copy of an email that its Representative received from an @fbi.gov email address stating that “Our investigation is ongoing.” From the submitted evidence, it appears to the Panel that Respondent used the name and contact information of an unsuspecting company it the WHOIS record of the disputed domain name.[i] Therefore, the Panel finds that bad faith registration and use is further supported by Respondent’s using false WHOIS information to register the disputed domain name under Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pultegroup.us> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: September 16, 2020
[i] For this reason, and to preserve the privacy of an innocent party, the Panel has determined that the name of the party mentioned in the WHOIS record for the disputed domain name be redacted from this decision.
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