Rock Financial, A Quicken Loans Company
v. Henry Chan
Claim
Number: FA0307000167917
Complainant is Rock Financial, A Quicken Loans Company,
Livonia, MI, USA (“Complainant”) represented by Robert S. Gurwin, of Rader Fishman & Grauer PLLC.
Respondent is Henry Chan, Nassau,
Bahamas (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <rockfinanical.com>, registered with Dotregistrar.com.
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.
Hon.
Ralph Yachnin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on July 3, 2003; the Forum received a hard copy of the Complaint
on July 7, 2003.
On
July 7, 2003, Dotregistrar.com confirmed by e-mail to the Forum that the domain
name <rockfinanical.com> is registered with Dotregistrar.com and
that Respondent is the current registrant of the name. Dotregistrar.com has
verified that Respondent is bound by the Dotregistrar.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
July 7, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 28, 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@rockfinanical.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
August 1, 2003, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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 <rockfinanical.com>
domain name is confusingly similar to Complainant’s ROCK FINANCIAL mark.
2. Respondent does not have any rights or legitimate
interests in the <rockfinanical.com> domain name.
3. Respondent registered and used the <rockfinanical.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Rock Financial, A Quicken Loans Company, is one of the top thirty mortgage
lenders in the U.S. Complainant began its mortgage lender services in 1985, and
by 2002 was closing over seven billion dollars in home loans annually.
Complainant uses its mark at the <rockfinancial.com> domain name to
provide information about its mortgage products and services and facilitate
consumer application for its services, and has registered the mark in both the
State of New York (Reg. No. S14408) and on the Principal Register of the U.S.
Patent and Trademark Office (U.S. Reg. No. 2,167,203, registered on June 23,
1998 for the MORTGAGE IN A BOX ROCK FINANCIAL mark).
Respondent,
Henry Chan, registered the <rockfinanical.com> domain name on
April 10, 2003, without license or authorization to use Complainant’s ROCK
FINANCIAL mark for any purpose. Respondent uses the domain name to redirect
Internet users to a website containing hyperlinks to the websites of companies
that offer mortgage services in competition with Complainant.
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 ROCK FINANCIAL mark through its state and federal
registrations of the mark in the U.S., as well as through its continuous use of
the mark in commerce since 1985.
Respondent’s <rockfinanical.com>
domain name is confusingly similar
to Complainant’s ROCK FINANCIAL mark. Besides eliminating the space between the
words ROCK and FINANCIAL (which is a mandatory feature of domain names),
Respondent has simply transposed two letters in the word FINANCIAL. This is not
enough of a change to prevent the disputed domain name from being confusingly
similar to Complainant’s mark. See Google
Inc. v. Jon G., FA 106084 (Nat. Arb. Forum
Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s
GOOGLE mark and noting that “[t]he transposition of two letters does not create
a distinct mark capable of overcoming a claim of confusing similarity, as the
result reflects a very probable typographical error”); see also Pier 1
Imp., Inc. v. Success Work,
D2001-0419 (WIPO May 16, 2001) (finding that the domain name <peir1.com>
is confusingly similar to Complainant's PIER 1 mark).
Accordingly, the
Panel finds that the <rockfinanical.com> domain name is confusingly similar to Complainant’s ROCK FINANCIAL mark
under Policy ¶ 4(a)(i).
Respondent uses
the <rockfinanical.com> domain name to redirect Internet users to
a website that provides access to a variety of companies that are in
competition with Complainant. As Respondent is using the disputed domain name,
which capitalizes on the goodwill surrounding Complainant’s ROCK FINANCIAL mark
to drum up business for Complainant’s competitors, Respondent cannot be
considered to be making a bona fide offering of goods or services at the
disputed domain name pursuant to Policy ¶ 4(c)(i), nor a legitimate
noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).
These Policy provisions are therefore inapplicable to Respondent. See
Ameritrade Holdings Corporation and Ameritrade, Inc. v. Polanski, FA 102715
(Nat. Arb. Forum Jan. 11, 2002) (finding that Respondent’s use of the disputed
domain name to redirect Internet users to a financial services website, which
competed with Complainant, was not a bona fide offering of goods or services); 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).
The Panel would
be hard pressed to find that Respondent is “commonly known by” the <rockfinanical.com>
domain name pursuant to Policy ¶ 4(c)(ii), considering that the domain name is
a misspelled phrase thats value rests in its relationship to Complainant’s ROCK
FINANCIAL mark. As no affirmative evidence before the Panel points to the
contrary, the Panel finds that Policy ¶ 4(c)(ii) does not apply to Respondent. See
MRA Holding, LLC v. Costnet, FA 140454 (Nat. Arb. Forum Feb. 20, 2003)
(noting that “the
disputed domain name does not even correctly spell a cognizable phrase” in
finding that Respondent was not “commonly known by” the name GIRLS GON WILD or <girlsgonwild.com>);
see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001)
(interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been
commonly known by the domain name prior to registration of the domain name to
prevail").
Accordingly, the
Panel finds that Respondent does not have rights or legitimate interests in the
<rockfinanical.com> domain
name under Policy ¶ 4(a)(ii).
Respondent
registered and used the <rockfinanical.com> domain name in bad faith. The disputed domain
name is an example of typosquatting, the appropriation of a trademark holder’s
mark with a typographical variation, done in order to attract Internet users
attempting to reach the trademark holder’s website. In light of Respondent’s
use of the domain name, the Panel infers that Respondent had actual knowledge
of Complainant’s rights in the ROCK FINANCIAL mark when it registered the
disputed domain name. Respondent’s use of the domain name to redirect Internet
users to competitors of Complainant after such knowing registration is evidence
that the domain name was registered and used in bad faith. See Nat’l
Ass’n of Prof’l Baseball Leagues v.
Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting 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 Digi
Int’l 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”).
The Panel thus
finds that Respondent registered and used the <rockfinanical.com> domain name in bad faith, and that Policy ¶
4(a)(iii) is satisfied.
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly, it
is Ordered that the <rockfinanical.com> domain name be TRANSFERRED
from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 15, 2003
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