Nationstar Mortgage LLC v. Online Management
Claim Number: FA1312001534127
Complainant is Nationstar Mortgage LLC (“Complainant”), represented by Bassam N. Ibrahim of Buchanan Ingersoll & Rooney PC, Virginia, USA. Respondent is Online Management (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nationstarwholesale.com>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 11, 2013; the National Arbitration Forum received payment on December 11, 2013.
On December 12, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <nationstarwholesale.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. 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 December 13, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2014 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@nationstarwholesale.com. Also on December 13, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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" 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, 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
Complainant is a residential mortgage servicer with offices across the United States, servicing loans with an aggregate value of more than $100 billion. Complainant has applied to the U.S. Patent and Trademark Office to register various service marks that include the term NATIONSTAR. Complainant states that it has used the NATIONSTAR mark for many years; has made substantial, continuous, and exclusive use of this mark; and has expended substantial resources to develop consumer awareness and goodwill for the mark. As a result, Complainant asserts that the mark has acquired strong secondary meaning and is famous. Complainant notes that the first ten pages of a Google search for NATIONSTAR are comprised entirely of references to Complainant.
The disputed domain name <nationstarwholesale.com> was registered through a privacy protection service on October 13, 2013. Complainant contends that the disputed domain name is confusingly similar to its NATIONSTAR marks, and that this similarity is enhanced by the association with wholesale lending, a service that was provided by Complainant until November 2013, when its wholesale lending business was sold to another company. The disputed domain name resolves to a website containing what appear to be pay-per-click advertising links offering mortgage lending services that compete with services offered by Complainant.
Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name. In support thereof, Complainant alleges that Respondent is not commonly known by the domain name; has not been authorized to use Complainant’s name or marks; has no trademark registration or other rights in the domain name; and has not used the domain name in connection with a bona fide offering of goods or services, or for any genuine noncommercial purpose. Complainant asserts that Respondent’s use of the domain name for a website containing pay-per-click links is not fair use because it is intended for commercial gain to misleadingly divert consumers.
Complainant further contends that the disputed domain name was registered and is being used in bad faith, based upon paragraph 4(b)(iv) of the Policy, because the only rationale for Respondent’s registration and use of the domain name is to attract internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant’s mark. Complainant points to Respondent’s registration of the domain name through a privacy protection service as additional evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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.
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.”).
Based upon Complainant’s allegations the Panel is satisfied that Complainant has common-law rights in its claimed NATIONSTAR mark. The disputed domain name combines this mark with the generic term “wholesale” and the top-level domain suffix “.com”. Neither of these additions significantly distinguishes the domain name from Complainant’s mark. See, e.g., State Farm Mutual Automobile Insurance Co. v. Spagnuolo, FA 418606 (Nat. Arb. Forum Mar. 23, 2005) (finding <statefarm-wholesale.com> confusingly similar to STATE FARM). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s use of the domain name for a website containing pay-per-click links, including links to Complainant’s competitors, is indicative of bad faith use under paragraph 4(b)(iv). See, e.g., Oceaneering International, Inc. v. Online Management, FA 1528891 (Nat. Arb. Forum Dec. 18, 2013); W.W. Grainger, Inc. v. Online Management, FA 1528223 (Nat. Arb. Forum Dec. 18, 2013); Clarins v. Online Management / Registration Private, D2013-1862 (WIPO Dec. 16, 2013); Tommy Bahama Group, Inc. v. Domains by Proxy, LLC/Online Management, D2013-1631 (WIPO Nov. 18, 2013). (The Panel also notes that Respondent appears to have engaged in a pattern of abusive domain name registrations, indicating bad faith under paragraph 4(b)(ii) of the Policy, although this point was not raised by Complainant.) The Panel therefore finds that Complainant has sustained its burden of proving that the disputed domain name was registered and has been used in bad faith.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nationstarwholesale.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 8, 2014
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