Nationstar Mortgage LLC v. Risk Management / Riskmanagement Rcom
Claim Number: FA1501001601437
Complainant is Nationstar Mortgage LLC (“Complainant”), represented by Bryce J. Maynard of Buchanan Ingersoll & Rooney PC, Virginia, USA. Respondent is Risk Management / Riskmanagement Rcom (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nationstarfinancial.com>, registered with Register.com, Inc.
The undersigned certifies that he 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 22, 2015; the Forum received payment on January 22, 2015.
On January 23, 2015, Register.com, Inc. confirmed by e-mail to the Forum that the <nationstarfinancial.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. 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 February 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 23, 2015 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@nationstarfinancial.com. Also on February 2, 2015, 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 March 4, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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" 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 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 contends as follows:
Complainant owns common law rights in the NATIONSTAR mark, as established through its continuous use of the mark and widespread consumer recognition.
Complainant is a consumer mortgage lender, and uses the NATIONSTAR mark to promote its services.
The <nationstarfinancial.com> domain name is confusingly similar to the NATIONSTAR mark. The domain name contains the Complainant’s mark in full, adds the descriptive word “financial,” and adds a generic top-level domain “.com” to complete the domain name.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, and Respondent has provided no evidence to the contrary. Further, Complainant has neither authorized nor licensed Respondent to use Complainant’s NATIONSTAR mark. Respondent’s lack of rights or legitimate interests in the <nationstarfinancial.com> domain name is evidenced by Respondent’s failure to use the domain name in connection with a bona fide offering of goods or services and failure to make a legitimate noncommercial or fair use of the domain name. Respondent’s domain name diverts Internet users to Respondent’s website <nationstarfinancial.com>, which contains a series of pay-per-click advertising links, some of which connect users to competing websites.
Respondent has engaged in bad faith registration and use of the <nationstarfinancial.com> domain name under Policy ¶ 4(a)(iii). Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Further, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has common law rights in the NATIONSTAR mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its NATIONSTAR trademark.
Respondent uses the at-issue domain name to address a website displaying pay-per-click links to various third parties including some of Complainant’s competitors.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
It is well settled that a Complainant need not have formally registered its trademark to proceed under the Policy. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). Here and in past disputes, Complainant presents sufficient evidence to allow the Panel to presume that Complainant’s NATIONSTAR mark has acquired secondary meaning and that therefore Complainant has common law trademark rights in such mark for the purpose of Policy ¶4(a)(i). See Nationstar Mortgage LLC v. Online Management, No. FA1312001534127 (NAF Jan. 8, 2014) (“[T]he Panel is satisfied that Complainant has common-law rights in its claimed NATIONSTAR Mark”); see also, Nationstar Mortgage LLC v. Zhichao Yang, No. FA1206001450754 (NAF Oct. 10, 2012) (“[T]he Panel finds that Complainant’s history of use and volume of promotion related to the NATIONSTAR and NATIONSTAR MORTGAGE marks demonstrates Complainant’s rights in the mark”); see also, Nationstar Mortgage LLC v. ICS Inc., No. FA1206001450756 (NAF Aug. 15, 2012) (“The Panel agrees and finds that Complainant has established rights in the NATIONSTAR Mark…through its continuous and extensive use of the mark in commerce”).
In forming the at-issue domain name Respondent concatenates Complainant’s NATIONSTAR trademark and the descriptive term “financial” and appends the top-level domain name “.com” to the resulting string. Merely adding a descriptive term to Complainant’s trademark does nothing to distinguish the at-issue domain name from Complainant’s mark, particularly when the added term suggests the nature of Complainant’s services as it does here. Moreover, the addition of the “.com” top-level domain name likewise fails to distinguish the domain name from Complainant’s mark. Therefore, the Panel finds that Respondent’s <nationstarfinancial.com>domain name is confusingly similar to Complainant’s NATIONSTAR trademark. See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also, The Royal Bank of Scotland Group plc v. Adeline Virourou, Case No. D2012-1722 (WIPO Nov. 27, 2012) (“As underlined by the Complainant, the addition of the suffix ‘financial’ does as a matter of fact increase the confusion considering that the Complainant’s business is banking.”); 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.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for the at-issue domain name lists “Risk Management / Riskmanagement Rcom” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <nationstarfinancial.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent uses the domain name to address a website displaying pay-per-click advertising links some of which refer to Complainant’s competitors. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors.
Given the forgoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent uses the confusingly similar at-issue domain name such that Internet users seeking Complainant inadvertently arrive at a website controlled by Respondent. Respondent’s <nationstarfinancial.com> website displays hyperlinks to various lending institutions, including “Nationwide,” “Huntington National Bank,” and “Chase.” Respondent anticipates that at least some of the accidental visitors to its website will click on one or more of these pay-per-click links. Using the domain name in this manner disrupts Complainant’s business and demonstrates Respondent’s bad faith registration and use of the at-issue domain name under Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Furthermore, Respondent’s use of the domain name is intended to attract, for commercial gain, Internet users to Respondent’s <nationstarfinancial.com> website by creating a likelihood of confusion between the website’s name and Complainant’s trademark. As also mentioned above, Respondent’s website displays pay-per-click advertising links. Respondent’s use of the domain name thus demonstrates Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nationstarfinancial.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 8, 2015
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