Quicken Loans Inc. v. Laura Yun / Offshore Hosting Solutions Ltd.
Claim Number: FA1510001644564
Complainant is Quicken Loans Inc. (“Complainant”), represented by Brian D. Wassom of Honigman Miller Schwartz and Cohn LLP, Michigan, USA. Respondent is Laura Yun / Offshore Hosting Solutions Ltd. (“Respondent”), Seychelles.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clicknloan.org>, registered with OnlineNIC, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 29, 2015; the Forum received payment on October 29, 2015.
On October 29, 2015, OnlineNIC, Inc. confirmed by e-mail to the Forum that the <clicknloan.org> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 November 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@clicknloan.org. Also on November 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 November 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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
1. Policy ¶ 4(a)(i) - Complainant has rights in the QUICKEN LOANS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,528,282, registered on January 8, 2002). Respondent’s <clicknloan.org> domain name is confusingly similar to the QUICKEN LOANS mark because of phonetic similarities between the mark and the phrase “clicknloan” and because the generic top-level domain (“gTLD”) “.org” does not distinguish the mark and domain.
2. Policy ¶ 4(a)(ii) - Respondent is not commonly known by the <clicknloan.org> domain name. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is used to compete with Complainant.
3. Policy ¶ 4(a)(iii) - Respondent uses the <clicknloan.org> domain name in bad faith because the resolving website is used to compete with Complainant and disrupt Complainant’s business for commercial gain. Respondent registered the <clicknloan.org> domain name in bad faith because it did so with actual or constructive knowledge of Complainant’s rights in the QUICKEN LOANS mark.
B. Respondent
1. Respondent has failed to submit a formal Response.
1. Respondent’s <clicknloan.org> domain name is confusingly similar to Complainant’s QUICKEN LOANS mark.
2. Respondent does not have any rights or legitimate interests in the <clicknloan.org> domain name.
3. Respondent registered or used the <clicknloan.org> domain name 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.”).
Complainant alleges it has rights in the QUICKEN LOANS mark through its registration with the USPTO (Reg. No. 2,528,282, registered on January 8, 2002). Complainant has provided this registration in Attached Exhibit 24. Past panels have found that registration with the USPTO suffices to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (holding that a trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)). As such, the Panel finds that Complainant has rights in the QUICKEN LOANS mark under Policy ¶ 4(a)(i).
Complainant alleges that Respondent’s <clicknloan.org> domain name is confusingly similar to Complainant’s QUICKEN LOANS mark because of phonetic similarities between the mark and the phrase “clicknloan” and because the gTLD “.org” does not distinguish the mark and domain. Complainant provides documentation from the Trademark Trial and Appeal Board, in Exhibit 25, as well as information from US courts, in Exhibit 26, to show that such authorities have recognized phonetic similarities as a basis to find a likelihood of confusion. Complainant argues that the phonetic similarities between the QUICKEN LOANS mark and the phrase “clicknloan” include the number of syllables, the hard “k” sound, and the pattern of stressing syllables. Past panels have found that phonetic similarities can form a basis for confusingly similarity under the Policy. See Barnes & Noble College Bookstores, Inc. v. Leasure Interactive, D2001-1216 (WIPO Mar. 25, 2002) (“The Panel further finds that the domain name <bunsandnoble.com> is confusingly similar to the BARNES & NOBLE marks in so far as the domain name is similar in sound to Complainant’s marks.”); see also Am. Online, Inc. v. Triple E Holdings Ltd., FA 281584 (Nat. Arb. Forum July 15, 2004) (“Words that are spelled differently but are phonetically similar do not negate the confusing similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).”). Panels have also agreed that “.org” cannot distinguish marks from domain names. See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). The Panel agrees with Complainant regarding phonetic similarities, here, and the Panel finds that Respondent’s <clicknloan.org> domain name is confusingly similar to Complainant’s QUICKEN LOANS mark pursuant to 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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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 interests in the subject domain names.”).
Complainant asserts that there is no reason to believe Respondent is commonly known by the <clicknloan.org> domain name. The Panel notes that the WHOIS information lists “Laura Yun” as Registrant and that Respondent has failed to provide further evidence to indicate being commonly known by the domain name. Past panels have found a lack of evidence, combined with non-descriptive WHOIS information can show that a respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”). Accordingly, the Panel finds that Respondent is not commonly known by the <clicknloan.org> domain name under Policy ¶ 4(c)(ii).
Complainant alleges that Respondent fails to use the <clicknloan.org> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the resolving website to compete with Complainant. Complainant has provided, in Exhibit 29, a screenshot of the website, in which Internet users are invited to fill out forms in pursuit of acquiring loans. Past panels have found competitive use to show a lack of bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services). The Panel finds Respondent is competing with Complainant, and the Panel finds that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Complainant alleges that Respondent uses the <clicknloan.org> domain name in bad faith because the resolving website disrupts Complainant’s business through competition. Complainant has provided, in Exhibit 29, a screenshot of the website, in which Internet users are invited to fill out forms in pursuit of acquiring loans. Past panels have found similar uses to constitute disruption under Policy ¶ 4(b)(iii), thereby showing bad faith use. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). The Panel finds Respondent competes with Complainant, and the Panel finds that Respondent uses the <clicknloan.org> domain name in bad faith under Policy ¶ 4(b)(iii).
Complainant alleges that Respondent uses the <clicknloan.org> domain name in bad faith by using it to compete with Complainant in order to profit commercially. Complainant has provided, in Exhibit 29, a screenshot of the website, in which Internet users are invited to fill out forms in pursuit of acquiring loans, through which Complainant presumes Respondent profits. Past panels have found such a use to constitute bad faith pursuant to Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark). The Panel finds such behavior by Respondent here, and the Panel finds that Respondent uses the <clicknloan.org> domain in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant alleges that Respondent registered the <clicknloan.org> domain name in bad faith because it did so with actual or constructive knowledge of Complainant’s rights in the QUICKEN LOANS mark. Complainant argues that the fame of Complainant’s mark afforded Respondent such knowledge. While past panels have considered actual knowledge sufficient to support bad faith, constructive knowledge is not. See Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16, 2002) (finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights); but see Meredith Corp. v. CityHome, Inc., D2000-0223 (WIPO May 18, 2000) (finding that the respondent’s constructive notice of the complainant’s registered mark was insufficient to support a finding of bad faith registration). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the QUICKEN LOANS mark at the time of registration, and the Panel finds that Respondent registered the <clicknloan.org> domain in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <clicknloan.org> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: December 11, 2015
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