Ocwen Financial Corporation v. Corporate
Training
Claim Number: FA0301000142323
PARTIES
Complainant is Ocwen Financial Corporation, West Palm Beach, FL (“Complainant”). Respondent is Corporate Training, Corona, CA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ocwen.org>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 20, 2003; the Forum received a hard copy of the Complaint on January 22, 2003.
On January 20, 2003, Intercosmos Media Group, Inc. d/b/a Directnic.Com confirmed by e-mail to the Forum that the domain name <ocwen.org> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.Com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.Com 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 January 24, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 13, 2003 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@ocwen.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On February 21, 2003, pursuant to Complainant's request to have the disspute decided by a single-member Panel, the Forum appointed James A. Crary 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." 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 domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <ocwen.org> domain name is identical to Complainant’s OCWEN mark.
2. Respondent does not have any rights or legitimate interests in the <ocwen.org> domain name.
3. Respondent registered and used the <ocwen.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ocwen Financial Corp., holds U.S. Patent and Trademark Office (“USPTO”) Reg. Nos. 2,333,474 and 2,330,061 for the OCWEN service mark. Complainant’s registrations are listed on the Principal Register of the USPTO and indicate first use in commerce as being December 1986. Complainant’s OCWEN mark denotes financial investment and related services. Complainant’s OCWEN registrations were completed in March 2000.
Complainant also holds numerous other United States and foreign registrations or pending applications for OCWEN marks, including: OCWEN FEDERAL BANK FSB, OCWEN FINANCIAL CORPORATION, and OCWEN TECHNOLOGY XCHANGE. Complainant has invested substantial resources in promoting its services under the OCWEN mark.
Complainant conducts business operations from the following domain names: <ocwen.com>, <ocwen.net>, <ocwen.biz>, and <ocwen.info>.
Respondent, Corporate Training, registered the <ocwen.org> domain name on August 16, 2002. Complainant’s investigation of Respondent’s use of the disputed domain name reveals that, upon arriving at the domain name in question, Internet users are welcomed to the “Ocwen Bank FSB User Group” and are requested to “Give Honest Feedback to Ocwen.” Complainant’s submission also indicates that Respondent previously used the domain name to resolve to a website offering “residential fire sprinkler installation” located at <firesprinklers.biz>. Currently, Respondent’s website is being used as a forum soliciting commentary from Complainant’s customers.
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.
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 has established rights in the OCWEN mark through its registrations with the USPTO and subsequent continuous use of the mark in connection to its financial services.
Respondent’s <ocwen.org> domain name is identical to Complainant’s OCWEN mark. Respondent’s domain name does not deviate from Complainant’s mark but for the addition of the top-level domain “.org.” However, a top-level domain does not affect the domain name for the purpose of determining whether it is identical under a Policy ¶ 4(a)(i) analysis. See Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that "the addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants"); see also Koninklijke Philips Elec. NV v. Ramazan Goktas, D2000-1638 (WIPO Feb. 8, 2001) (finding that the domain name <philips.org> is identical to Complainant’s PHILIPS mark).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant’s submission to the Panel asserts that Respondent does not have any rights or legitimate interests in the <ocwen.org> domain name. Because Respondent has failed to submit a Response, Complainant’s assertions are unopposed and the Panel is permitted to accept all reasonable inferences contained in the Complaint as true. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
Additionally, because Complainant has provided proof of valid, subsisting rights in a mark that is identical to the domain name in question and has alleged that Respondent lacks rights or legitimate interests in the domain name, the burden shifts to Respondent. By failing to respond, Respondent has consequently failed to assert any circumstances that could substantiate its rights or interests in the subject domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).
Uncontested circumstances indicate
that Respondent has used the <ocwen.org> domain name to direct
Internet traffic to another website located at <firesprinklers.biz>,
which is a business offering residential fire sprinkler installation.
Respondent’s domain name intentionally creates confusion, diverts Internet
users seeking information on Complainant’s business, and leads visitors to
initially believe that the unrelated websites are somehow sponsored or
affiliated with Complainant’s business. As such, Respondent is not using the
domain name in connection with a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), but is using the domain name to divert customers
or prospective customers of Complainant. See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb.
Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain
name to confuse and divert Internet traffic is not a legitimate use of the
domain name); see also Toronto-Dominion
Bank v. Karpachev, 188 F.Supp.2d
110, 114 (D. Mass. 2002) (finding that, because
Respondent's sole purpose in selecting the domain names was to cause confusion
with Complainant's website and marks its use of the names was not in connection
with the offering of goods or services or any other fair use).
No
information or evidence before the Panel suggests that Respondent has ever been
commonly known by the domain name or that Respondent has any existing business
interests to protect in connection with <ocwen.org>. Complainant’s
submission indicates that Respondent has used the domain name to divert
Internet users to unrelated websites, which suggests Respondent does not have a
unique interest in the domain name. Therefore, Respondent fails to establish
rights in the domain name under Policy ¶ 4(c)(ii). See Great S.
Wood Pres., Inc. v. TFA Assocs.,
FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding that Respondent was not
commonly known by the domain name <greatsouthernwood.com> where
Respondent linked the domain name to <bestoftheweb.com>); see also Gallup Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have
rights in a domain name when Respondent is not known by the mark).
Although the Findings indicate that the domain name currently resolves to a forum that solicits commentary and complaints from Complainant’s customers, Respondent has failed to advance any arguments regarding freedom of speech or First Amendment rights. Further, it is unclear whether any such argument would be persuasive because Respondent’s domain name is identical to Complainant’s mark. Previous panels have determined that a high degree of initial interest confusion exists when a respondent registers a domain name that is identical to a complainant’s mark, where consumers would be easily confused for an otherwise fair use. Therefore, no evidence supports a finding that Respondent is using the disputed domain name in connection with a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Monty & Pat Roberts, Inc. v. Keith, D2000-0299 (WIPO June 9, 2000) (finding that “[T]he Panel does not dispute Respondent’s right to establish and maintain a website critical of (the Complainant) . . . . However, the panel does not consider that this gives Respondent the right to identify itself as Complainant”); see also Baker &Daniels v. DefaultData.com, FA 104579 (Nat. Arb. Forum Mar. 27, 2002) (finding that because Respondent’s <bakeranddaniels.com> domain name merely incorporates Complainant’s trademark, without more, it is not protected by the First Amendment).
Accordingly, the Panel finds that
Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s bad faith registration and use of the domain name is articulated under Policy ¶ 4(b)(iv). Complainant’s submission reveals that Respondent previously used the domain name to redirect Internet users to a website offering “residential fire sprinkler installation” located at <firesprinklers.biz>. No evidence before the Panel refutes Complainant’s assertions or indicates that Respondent’s diversionary use of the domain name was accomplished by accident. Although Respondent apparently no longer uses the domain name to divert Internet users to this commercial website, it is sufficient for the purpose of establishing bad faith that at one time Respondent engaged in such activity. Respondent intentionally attempted to attract Internet users to its <firesprinklers.biz> website, for commercial gain, by using Complainant’s OCWEN mark in the subject domain name; thus, Respondent registered and used the <ocwen.org> domain name in bad faith. See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent).
The Panel finds that Policy ¶4(a)(iii) has been satisfied.
Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ocwen.org> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: February 28, 2003
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