GMAC Mortgage, LLC v. gioacchino zerbo
Claim Number: FA0808001220824
Complainant is GMAC Mortgage, LLC (“Complainant”), represented by Michael
D. Fishman, of Rader, Fishman & Grauer PLLC, Michigan,
USA. Respondent is gioacchino
zerbo (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <homecommings.com>, registered with Tuonome.It Srl.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 15, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 19, 2008.
On September 1, 2008, Tuonome.It Srl confirmed by e-mail to the National Arbitration Forum that the <homecommings.com> domain name is registered with Tuonome.It Srl and that Respondent is the current registrant of the name. Tuonome.It Srl has verified that Respondent is bound by the Tuonome.It Srl 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 September 5, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 25, 2008 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@homecommings.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 8, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <homecommings.com> domain name is confusingly similar to Complainant’s HOMECOMINGS mark.
2. Respondent does not have any rights or legitimate interests in the <homecommings.com> domain name.
3. Respondent registered and used the <homecommings.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, GMAC Mortgage, LLC, works conjunctively with Homecomings Financial, LLC to provide real estate financing services. Complainant uses the HOMECOMINGS mark (Reg. No. 1,792,907 issued September 14, 1993 by the United States Patent and Trademark Office) to promote its services, and also registered the <homecomings.com> domain name to advertise online.
Respondent registered the <homecommings.com> domain name on December 28, 2001, and uses it to display information and links on financial services that compete with Complainant’s business.
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.
Complainant’s evidenced trademark registration adequately establishes Complainant’s rights in the HOMECOMINGS mark pursuant to Policy ¶ 4(a)(i). See State Farm Mut. Auto. Ins. Co. v. Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy ¶ 4(a)(i).”); see also Mattel, Inc. v. KPF, Inc., FA 244073 (Nat. Arb. Forum Apr. 26, 2004) (“Complainant established rights in the BARBIE mark through registration with the U.S. Patent and Trademark Office (‘USPTO’).”).
Respondent’s <homecommings.com> domain name contains Complainant’s HOMECOMINGS mark in its entirety and merely adds an additional “m” and the generic top-level domain “.com.” The Panel finds that the overall impression of the <homecommings.com> domain name remains Complainant’s HOMECOMINGS mark, so the two are confusingly similar pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Domain Registration Philipines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i).”); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <homecommings.com> domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
The WHOIS information identifies Respondent as “Gioacchino
Zerbo,” and the Panel can find no other evidence in the record indicating that
Respondent may be commonly known by the <homecommings.com>
domain name. Therefore, the Panel finds
that Respondent lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding
that the respondent was not commonly known by the <cigaraficionada.com>
domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other
evidence in the record); see also Coppertown
Drive-Thru Sys., LLC v. Snowden, FA 715089
(Nat. Arb. Forum July 17, 2006) (concluding that the
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the WHOIS information,
suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <homecommings.com> domain name resolves to a website that displays information and links regarding the services of Complainant’s competitors. Respondent presumably receives referral and/or click-through fees from this venture. The Panel therefore concludes that Respondent’s use of the <homecommings.com> domain name constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (holding that the respondent’s use of the contested domain name to maintain a commercial website with links to the products and services of the complainant’s competitors did not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
As mentioned above, the <homecommings.com> domain name consists of Complainant’s mark in its entirety, but adds an extra “m.” Internet users may mistakenly assume that this is the correct spelling of Complainant’s mark, or in the alternative accidentally type an extra “m” when attempting to reach Complainant’s website. In either event, Respondent is attempting to profit from a presumably easy mistake for Internet users to make. This practice can be considered as typosquatting, and represents further evidence of Respondent’s lack of rights and legitimate interests in the <homecommings.com> domain name pursuant to Policy ¶ 4(a)(ii). See See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of the complainant's mark).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent is profiting from its disruptive use of the <homecommings.com> domain name by
diverting Internet users to the websites of Complainant’s competitors. This evidences bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat.
Arb. Forum Feb. 13, 2007) (finding that the respondent registered and
used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when
the disputed domain name resolved to a website that displayed commercial links
to the websites of the complainant’s competitors in the financial services
industry); see also David Hall Rare Coins
v.
Respondent is attempting to profit off the goodwill associated with Complainant’s HOMECOMINGS mark by using a typosquatted version of Complainant’s mark in the disputed domain name. This has created a likelihood of confusion strictly for Respondent’s commercial gain. The Panel concludes that this constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because Respondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Finally, Respondent’s use of a typosquatted version of
Complainant’s mark evidences bad faith registration and use pursuant to Policy
¶ 4(a)(iii). See Computerized
Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003)
(finding that the respondent engaged in typosquatting, which is evidence of bad
faith registration and use under Policy ¶ 4(a)(iii)); see also Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s
registration and use of the <nextell.com> domain name was in bad faith
because the domain name epitomized typosquatting in its purest form).
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <homecommings.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: October 21, 2008
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