LendingTree, Inc. v. A+ Loans
Claim Number: FA0306000165130
Complainant is LendingTree, Inc., Charlotte, NC
(“Complainant”) represented by John C.
McElwaine, of Nelson Mullins Riley
& Scarborough, LLP. Respondent
is A+ Loans, Alderson, WV
(“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The
domain names at issue are <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com>, registered with Register.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.
Judge
Harold Kalina (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on June 23, 2003; the Forum received a hard copy of the
Complaint on June 27, 2003.
On
June 25, 2003, Register.Com, Inc. confirmed by e-mail to the Forum that the
domain names <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> are registered with Register.Com and that
Respondent is the current registrant of the names. Register.Com, Inc. has
verified that Respondent is bound by the Register.Com, Inc. 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
July 1, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 21, 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@lendigntree.com, postmaster@lendningtree.com,
postmaster@ ledningtree.com, and postmaster@lndingtree.com 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
July 30, 2003, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the Forum appointed Judge Harold Kalina (Ret.) 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lendigntree.com>,
<lendningtree.com>,
<ledningtree.com>,
<ledingtree.com>, and <lndingtree.com> domain names
are confusingly similar to Complainant’s LENDINGTREE mark.
2. Respondent does not have any rights or
legitimate interests in the <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names.
3. Respondent registered and used the <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant is
an on-line lending service that matches borrowers in the field of consumer and
mortgage lending. Potential borrowers
can apply for loans on-line and Complainant provides the applicant with up to
four offers from potential lenders.
Complainant holds the registration for the <lendingtree.com>
domain name and uses it in conjunction with these services. Complainant owns the LENDINGTREE mark, which
was registered with the U.S. Patent and Trademark Office on July 27, 1999 (Reg.
No. 2,265,733). Complainant has used
the LENDINGTREE mark in commerce since 1998.
An October 2002 Nielsen/Net Ratings survey ranked the
<lendingtree.com> website the top site in the category of on-line “loan
brands or channels.”
Respondent
registered the disputed domain names between April 14, 2000 and August 6,
2002. In early 2003, each of the disputed
domain names linked to Respondent’s website, which offers on-line loan
application services similar to Complainant.
As of June 6, 2003 the <lndingtree.com>,
<ledningtree.com>, and <ledingtree.com> domain names
were still linked to the competing website.
As of July 22, 2003 the <lendigntree.com>
and <lendningtree.com> domain
names were inactive.
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 LENDINGTREE mark through use in commerce and
registration with the U.S. Patent and Trademark Office.
Respondent’s <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names are confusingly similar to
Complainant’s LENDINGTREE mark because the disputed domain names merely
misspell the word “lending.” Minor
misspellings of the LENDINGTREE mark will not circumvent Complainant’s rights
in the mark and will not prevent a finding of confusing similarity pursuant to
Policy ¶ 4(a)(i). See Victoria’s Secret v.
Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by
misspelling words and adding letters to words, a Respondent does not create a
distinct mark but nevertheless renders the domain name confusingly similar to
Complainant’s marks); see also Reuters Ltd. v. Global Net 2000, Inc.,
D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by
only one letter from a trademark has a greater tendency to be confusingly
similar to the trademark where the trademark is highly distinctive).
Furthermore, the
fact that the disputed domain names link to a website that offers services
similar to Complainant’s is additional evidence that the disputed domain names
are confusingly similar to the LENDINGTREE mark. See Slep-Tone Entm't Corp. v. Sound Choice Disc
Jockeys, Inc., FA 93636 (Nat. Arb. Forum Mar. 13, 2000) (stating that
“likelihood of confusion is further increased by the fact that the Respondent
and [Complainant] operate within the same industry”); see also Vivid Video, Inc. v.
Tennaro a/k/a Vivid Revolution, FA 126646 (Nat. Arb. Forum Nov. 14, 2002)
(finding that any distinctiveness resulting from Respondent’s addition of a
generic word to Complainant’s mark in a domain name is less significant because
Respondent and Complainant operate in the same industry).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Due to
Respondent’s failure to dispute the allegations in the Complaint, the Panel
presumes that Respondent lacks rights or legitimate interests in the disputed
domain names pursuant to Policy ¶ 4(a)(ii).
See 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); see also Pavillion Agency, Inc. v. Greenhouse Agency
Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to
respond can be construed as an admission that they have no legitimate interest
in the domain names).
Furthermore, the
WHOIS information for the disputed domain names does not establish that
Respondent is commonly known by any of the domain names. Also, nothing in the record establishes that
Respondent has been given authority by Complainant to use the LENDINGTREE
mark. Therefore, pursuant to Policy ¶
4(c)(ii), the Panel finds that Respondent lacks rights or legitimate interests
in the disputed domain names. See Tercent,
Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii)
does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
Respondent was not commonly known by the mark and never applied for a license
or permission from Complainant to use the trademarked name).
In addition,
Respondent is using the disputed domain names to redirect Internet users to
Respondent’s website that offers services that compete with Complainant. Respondent’s use of the confusingly similar
domain names to redirect confused Internet users to a website that competes
with Complainant is neither a bona fide offering of goods or services pursuant
to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii). See Clear Channel Communications, Inc. v.
Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that
Respondent, as a competitor of Complainant, had no rights or legitimate
interests in a domain name that utilized Complainant’s mark for its competing
website); see also Yahoo!, Inc. v. Web Master a/k/a MedGo,
FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that Respondent’s use of a
confusingly similar domain name to operate a pay-per-click search engine, in
competition with Complainant, was not a bona fide offering of goods or
services).
Moreover,
Respondent has engaged in the practice of “typosquatting.” Respondent intentionally registered the
disputed domain names, which are misspellings of Complainant’s mark, with the
purpose of redirecting Internet users who attempt to access Complainant’s
website but misspell the mark.
Respondent’s “typosquatting” is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names. See 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
Complainant's mark); see also Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan.
21, 2003) (“Typosquatting as a means of redirecting consumers against their
will to another site, does not qualify as a bona fide offering of goods or
services, whatever may be the goods or services offered at that site.”).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
The Panel infers
that Respondent had actual or constructive knowledge of Complainant’s mark
because Respondent was in the same industry as Complainant, the LENDINGTREE
mark was registered with the U.S. Patent and Trademark Office, and the mark has
been used in commerce since 1998.
Registration of domain names, despite the knowledge of Complainant’s
rights, is evidence of bad faith registration pursuant to Policy ¶
4(a)(iii). See Digi Int’l, Inc. v. DDI
Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a
legal presumption of bad faith, when Respondent reasonably should have been
aware of Complainant’s trademarks, actually or constructively”); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002)
(“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO,
a status that confers constructive notice on those seeking to register or use
the mark or any confusingly similar variation thereof”).
Furthermore,
Respondent has used the disputed domain names to disrupt
Complainant’s
business. Both parties provide loan
application services on-line.
Respondent has registered the disputed domain names with the intent to
divert Complainant’s potential customers to Respondent’s competing
website. Respondent’s use of the
confusingly similar domain names to divert customers to its competing website
is evidence of bad faith pursuant to Policy ¶ 4(b)(iii). See
Gen. Media Communications, Inc. v. Vine
Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) (finding bad faith where a
competitor of Complainant registered and used a domain name confusingly similar
to Complainant’s PENTHOUSE mark to host a pornographic web site); see also Clear Channel Communications, Inc. v. Beaty Enters., FA 135008
(Nat. Arb. Forum Jan. 2, 2003) (finding evidence of bad faith use and
registration where Respondent and Complainant both operated in the highly
regulated field of radio broadcasting and Respondent registered a domain name
incorporating Complainant’s call letters).
Finally,
Respondent has engaged in the practice of “typosquatting.” Respondent’s conduct is evidence of bad
faith registration and use pursuant to Policy ¶ 4(a)(iii). See
Nat’l Ass’n of Prof’l Baseball Leagues,
Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting,
however, is the intentional misspelling of words with intent to intercept and
siphon off traffic from its intended destination, by preying on Internauts who
make common typing errors.
Typosquatting is inherently parasitic and of itself evidence of bad
faith”); see also Sports Auth. Mich., Inc. v. Elias Skander
d/b/a Web Registration Service, FA 135598 (Nat. Arb. Forum Jan. 7, 2002)
(stating that “[b]y registering the “typosquatted” domain name in
[Complainant’s] affiliate program, Respondent profits on the goodwill of
[Complainant’s] protected marks and primary Internet domain names,” evidence of
bad faith registration and use).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated:
August 13, 2003
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