Ocwen Financial Corporation v. Michael Bourque / Ocwen Financial
Claim Number: FA1612001707229
Complainant is Ocwen Financial Corporation (“Complainant”), represented by Bryce J. Maynard of Buchanan Ingersoll & Rooney PC, Virginia, USA. Respondent is Michael Bourque / Ocwen Financial (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ocwengroup.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.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.
The Honourable Neil Antony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 13, 2016; the Forum received payment on December 13, 2016.
On December 14, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <ocwengroup.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 5, 2017 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@ocwengroup.com. Also on December 16, 2016, 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 January 17, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Antony Brown QC 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 made the following contentions.
Complainant has rights in the OCWEN mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,330,061, registered Mar. 14, 2000). Respondent’s domain name <ocwengroup.com> is nearly identical to the OCWEN mark as the domain name merely adds the generic term “group” and the generic top-level domain “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by the disputed domain name based on WHOIS information and has never been licensed or authorized to use the OCWEN mark. Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use as the domain is used to carry out fraud through sending out emails where Respondent poses as Complainant’s CFO and requests products on Complainant’s behalf.
Respondent has registered and is using the disputed domain name in bad faith. Respondent attempting to fraudulently pass off as Complainant’s CFO demonstrates a bad faith attempt to compete and disrupt Complainant’s business. Respondent also should be found to have had actual knowledge of Complainant’s mark at the time of registration based on use of information related to Complainant such as the name of Complainant’s business and CFO.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that is one of the leading mortgage servicing companies in the United States.
2. Complainant has rights in the OCWEN mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,330,061, registered Mar. 14, 2000).
3. Respondent registered the disputed domain name on September 14, 2016.
4. The disputed domain name is used to carry out fraud through sending out emails where Respondent poses as Complainant’s CFO and requests products on Complainant’s behalf.
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(f), 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 (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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the OCWEN mark based on registration of the mark with the USPTO (e.g., Reg. No. 2,330,061, registered Mar. 14, 2000). See Compl., at Attached Ex. 1. Panels routinely find, and this Panel similarly finds, that registration of a mark with the USPTO is sufficient to demonstrate a registrant’s rights in a mark. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s OCWEN mark. Complainant submits that Respondent’s <ocwengroup.com> domain name is confusingly similar to the OCWEN mark. The domain name includes the entire OCWEN mark and differs from the mark through the addition of the term “group” and the gTLD “.com.” Panels have found that the addition of generic words and gTLDs to a mark in a domain name does not alleviate confusing similarity. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.). The Panel concludes that Respondent’s <ocwengroup.com> domain name is confusingly similar to the OCWEN mark for purposes of Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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 (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 (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.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s OCWEN mark and to use it in its domain name, adding only the word “group”;
(b) Respondent registered the disputed domain name on September 14, 2016;
(c) Respondent has used the domain name to carry out fraud through sending out emails where Respondent poses as Complainant’s CFO and requests products on Complainant’s behalf;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent has not been commonly known by the disputed domain name based on WHOIS information and has never been licensed or authorized to use the OCWEN mark. WHOIS information associated with the disputed domain name identifies Respondent as, “Michael Bourque,” of the organization, “Ocwen Financial.” See WHOIS at Client. Although WHOIS information matches the name of Complainant’s CFO Complainant states that Respondent has falsely registered the domain name using such information. See Compl., at 4. Panels have held that a respondent is not commonly known by a disputed domain name despite WHOIS information to the contrary. See Moneytree, Inc. v. Matt Sims / MoneyTreeNow, FA1501001602721 (Forum March 3, 2015) (finding that even though the respondent had listed “Matt Sims” of “MoneyTreeNow” as registrant of the <moneytreenow.com> domain name, the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), because he had failed to list any additional affirmative evidence beyond the WHOIS information); The Toronto-Dominion Bank v. RD BANK /-, FA1404001554468 (Forum May 13, 2014) (“WHOIS information for the <rdbank.com> domain name lists ‘RD BANK /-‘ as the domain name’s registrant. However, there is nothing in the record that corroborates the WHOIS data’s suggestion that Respondent may be commonly known by the <rdbank.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).”). Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant next argues that Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use as the domain name is used to carry out fraud through sending out emails where Respondent poses as Complainant’s CFO and requests products on Complainant’s behalf. An email associated with the disputed domain name has apparently been used by Respondent to send emails to <connection.com>, a business communications provider, and Verizon Wireless, in an attempt to procure new phone lines and devices. See Compl., at Attached Ex. 6 & 7. Panels have found that such use amounts to passing off and that passing off behavior does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum March 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”). The Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant submits that Respondent attempting to pass off fraudulently as Complainant’s CFO demonstrates a bad faith attempt to compete and disrupt Complainant’s business. Again, Respondent appears to have used the disputed domain name to send emails soliciting products from vendors on Complainant’s behalf. See Compl., at Attached Ex. 6 & 7. Panels have held that impersonating a corporate executive of a complainant through an email associated with a disputed domain name may constitute bad faith competition and disruption under Policy ¶ 4(b)(iii). See Abbvie, Inc. v. Ion Chitoraga, FA 1673810 (Forum Nov. 16, 2016) (“Respondent’s impersonation of Complainant’s Chief Executive Officer disrupts and competes with Complainant’s business.”). The Panel finds that Respondent’s use of the disputed domain name demonstrates bad faith under Policy ¶ 4(b)(iii).
Secondly, Respondent also should be found to have had actual knowledge of Complainant’s mark at the time of registration based on use of information related to Complainant such as the name of Complainant’s business and CFO.
Thirdly, Complainant also contends that in light of Respondent’s use of the <ocwengroup.com> domain name, to impersonate a corporate office of Complainant, it is inconceivable that Respondent could have registered the <ocwengroup.com> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. Although UDRP decisions have declined to find bad faith as a result of constructive knowledge, the Panel finds on the evidence that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name. Actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Fourthly, in addition and having regard to the totality of the evidence, the Panel
finds that, in view of Respondent’s registration of the disputed domain name using the OCWEN mark and in view of the conduct that Respondent has
engaged in when using the domain name, Respondent registered and used the
disputed domain name in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ocwengroup.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Antony Brown QC
Panelist
Dated: January 18, 2017
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