LowerMyBills, Inc v. LowerALLmybills.com
and Bob Brown
Claim Number: FA0503000440261
PARTIES
Complainant
is LowerMyBills, Inc. (“Complainant”),
represented by Sean F. Heneghan, 31 Reading Hill Avenue, Melrose, MA
02176. Respondent is LowerALLmybills.com
and Bob Brown (“Respondent”), P.O. Box 8167, Van Nuys, CA 91409-8167.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <lowerallmybills.com>,
registered with Register.com.
PANEL
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.
Richard
Hill as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on March
14, 2005; the National Arbitration Forum received a hard copy of the Complaint
on March 16, 2005.
On
March 15, 2005, Register.com confirmed by e-mail to the National Arbitration
Forum that the domain name <lowerallmybills.com>
is registered with Register.com and that the Respondent is the current
registrant of the name. Register.com has verified that Respondent is bound by
the Register.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
March 17, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of April 6,
2005 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@lowerallmybills.com by e-mail.
A
timely Response was received and determined to be complete on April 7, 2005.
On April 15, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Richard Hill as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant
is an independent online service that provides consumers a one-stop destination
that offers savings through its relationship with more than 250 business
partners across 15 categories, including consumer lending, auto and health
insurance, and long distance phone and wireless services. The side-by-side comparisons
provided by Complainant include benefits and prices offered by providers in
reoccurring monthly bill categories. Complainant's aggregation of mortgage
lenders' rates for home purchase, home refinance, home equity and/or debt
consolidation loans is one of its most popular services. Complainant also
assists consumers in signing up for a particular provider, as well as offering
consumer tips, financial calculators and incremental bill saving suggestions.
Complainant,
LowerMyBills, Inc., is the owner of the trademark LOWERMYBILLS.COM.
Complainant’s LOWERMYBILLS.COM mark and trade name are used in connection with
its services of providing comparison shopping and consumer-related information
through its website. The LOWERMYBILLS.COM mark has been used in connection with
Complainant’s popular Internet-based consumer information services since as
early as February 7, 2000. By virtue of the quality of its services, the five
years of continuous use and extensive advertising and promotion, the
LOWERMYBILLS.COM trademark is well known to, and well regarded by, the
consuming public.
Respondent
“LowerALLmybills” and Bob Brown registered the domain name <lowerallmybills.com>
on March 17, 2004. Respondent is currently using the subject domain name in
connection with services that are similar as those offered by Complainant,
namely aggregating mortgage lenders' rates.
On
April 20, 2004, Complainant requested that Respondent begin an immediate
transfer of the disputed domain name and offered to compensate Respondent
for the registration fee. Respondent, via an email sent on April 20, 2004 by
Jim Minor, stated “Lowerallmybills is a Mortgage Company” but stated he was
willing to transfer the disputed domain name for $50,000, which Mr. Minor
claimed were the expenses incurred in relation to the domain name.
In
an April 26, 2004 letter, Complainant’ counsel rejected Respondent’s proposal,
pointed out that Complainant’s services of comparison rates and plans for home
equity and home refinance loans overlap with Respondent’s proposed mortgage
services and offered $250 for the transfer of the disputed domain name in order
to bring the matter to an amicable close. Mr. Minor sent an email to
Complainant’s counsel on April 29, 2004, rejecting Complainant’s offer, as well
as identifying himself as president of Preferred Funding, Inc. d/b/a
LowerALLmyBills.
On
May 5, 2004, Complainant’ counsel increased its offer for the transfer of the
disputed domain name to $500 and requested, among other things, written
assurances that Respondent would immediately cease all plans to use and/or sell
the subject domain. At the time of the May 5 letter, the domain name was still
in placeholder status. On May 27, 2004, Respondent sent a follow up letter to
Complainant’ counsel, rejecting the $500 proposal and included a list of
alleged general expenses for the disputed domain name and website that totaled
$27,720. At some point after the May 27 letter, the website went live.
On
August 6, 2004, Complainant’s counsel noted the new status of the subject
domain name, demanded that the website be disabled, reiterated Complainant’s
$500 proposal and requested evidence that would support the alleged $27,720
costs. On August 30, 2004, Mr. Minor rejected the $500 proposal, reiterated the
demand for $27,720 but again failed to provide any evidence of the alleged
costs associated with the subject domain.
On
December 1, 2004, Complainant’s counsel noted that Respondent did not supply
any evidence of alleged costs associated with the disputed domain name and reiterated
the demand to cease use of the subject domain and its proposal for $500. On
December 2, 2004 Mr. Minor rejected Complainant’s proposal. At no point did
Respondent supply Complainant with any documentation that supported
Respondent’s claim of $27,720 in alleged costs in connection with the subject
domain name, despite several requests on Complainant’s part for such
documentation.
The
disputed domain name is confusingly similar to Complainant’s LOWERMYBILLS.COM
trademark. Specifically, the subject domain name includes Complainant’s mark
and deviates from it only with the addition of the generic or descriptive term
“all”.
Respondent
is currently using the disputed domain name in connection with services that
are similar to those offered by Complainant, namely aggregating mortgage
lenders' rates. There is, in fact, a substantial likelihood that Complainant’s
trademark LOWERMYBILLS.COM, and the goodwill associated therewith, was the
reason Respondent registered the disputed domain name. Sizeable traffic is
generated from sites associated with widely known marks, and it appears that
Respondent sought to take advantage of this circumstance.
Respondent
has no legitimate rights or interests in the subject domain name. Respondent is
not commonly known, either as an individual, business or organization, by the
name LOWER ALL MY BILLS or LOWERALLMYBILLS.COM. Before notification of the
dispute with Complainant, Respondent had neither used nor made any demonstrable
preparations to use the disputed domain name or a corresponding name in
connection with a bona fide offering
of goods or services or in a legitimate, non-commercial, fair use manner.
Appropriating
Complainant’s mark to promote related services is not bona fide offering
of a good or service pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See
Computerized Sec. Sys., Inc. v. Hu, FA 157321 (NAF June 23, 2003) (holding
that Respondent’s appropriation of Complainant’s mark to market products that
compete with Complainant’s goods does not constitute a bona fide offering of goods or services); see also Chip Merch., Inc. v. Blue Star Elec.,
D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were
confusingly similar to Complainant’s mark and that Respondent’s use of the
domain names to sell competing goods was illegitimate and not a bona fide offering of goods).
Respondent
is not making a non-commercial or fair use of the disputed domain name. The
website that is associated with the disputed domain name is clearly commercial in nature and the disputed
domain name is being operated for the financial benefit of the Respondent. In
fact, Respondent has used the disputed domain name to direct Internet users to
a websites that markets services similar to Complainant’s services. The use of
a confusingly similar domain name in order to divert Web users interested in
Complainant’s services to a competing website is not a use in connection with a
bona fide offering of goods or services
pursuant to Section 4(c)(i), or a legitimate noncommercial or fair use pursuant
to Section 4(c)(iii). See N. Coast
Med., Inc. v. Allegro Med., FA 95541 (NAF Oct. 2, 2000) (finding no bona fide use where Respondent used the
domain name to divert Internet users to its competing website); see also Ticketmaster Corp. v. DiscoverNet, Inc.,
Case No. D2001-0252 (WIPO Apr. 9, 2001)(finding no rights or legitimate
interests where Respondent generated commercial gain by intentionally and
misleadingly diverting users away from the Complainant's site to a competing
website).
Respondent
registered and is using the disputed domain name in bad faith pursuant to
4(b)(iii) of the Policy by registering a domain name primarily to disrupt
Complainant’s business, which is in competition with Respondent’s services. It
is also evident that Respondent has intentionally attempted to attract, for
commercial gain, Internet users to its own website by creating a likelihood of
confusion with Complainant’s LOWERMYBILLS.COM trademark and
<lowermybills.com> website. These users may have engaged
Respondent’s services via <lowerallmybills.com> on the mistaken
belief that the domain name was connected to Complainant.
Furthermore,
Respondent offered to sell the disputed domain name to Complainant, first for
$50,000, then later for at least $27,720. Both of these amounts well exceed any
out-of-pocket costs directly related to the disputed domain name. Furthermore,
at no point did Respondent supply Complainant with any documentation that supported
Respondent’s claim of $27,720 in alleged costs in connection with the disputed
domain name, despite several requests on Complainant’s part for such
documentation. These facts indicate that Respondent registered the disputed
domain name for the purpose of selling the domain’s registration to Complainant
for valuable consideration in excess of Respondent’s out-of-pocket costs
directly related to the subject domain, which evidences bad faith registration
and use pursuant to Section 4(b)(i) of the Policy.
B.
Respondent
The
substantive part of Respondent’s Response is reproduced verbatim below:
Respondent
has made serveral offers and counter-offers to sell the <lowerallmybills.com>
domain name. All offers and counter-offers have been made in good faith.
Respondent
has not made any other substantive submissions.
FINDINGS
Complainant is an independent online
service that has provided comparative shopping information to consumers through
its website at <lowermybills.com> since February 2000. It has registered
trademark rights in the mark LOWERMYBILLS.COM.
Respondent registered the contested
domain name in March 2004.
Responding to a request by the
Complainant, Respondent offered to transfer the disputed domain name in
exchange for payment of US$50,000, then later offered to accept US$27,720
which, it claimed, represented the general expenses for the disputed domain
name and website.
Respondent is currently using the
disputed domain name in connection with services that are similar as those
offered by Complainant.
Before notification of the dispute with
Complainant, Respondent had neither used nor made any demonstrable preparations
to use the disputed domain name or a corresponding name in connection with a bona fide offering of goods or services
or in a legitimate, non-commercial, fair use manner.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a
trademark or service mark in which the Complainant has rights;
(2)
the
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.
Prior
to addressing the substantive issues, the Panel will address a procedural
issue.
Respondent
did not submit an electronic copy of the Response in accordance with ICANN Rule
5(a). The Panel has discretion to give weight to the contents of the deficient
Response as it deems appropriate. In this case, the Panel rules that it will
accept the deficient response. See Strum v.
Nordic Net Exch. AB, FA 102843 (Nat. Arb. Forum Feb. 21, 2002) (“Ruling a
Response inadmissible because of formal deficiencies would be an extreme remedy
not consistent with the basic principles of due process.”).
However,
the Panel notes that the Response is extremely succinct and that it does not
address many of the issues raised by the Complainant, which is inconsistent
with Rule 5(b)(i). In accordance with Rule 14(b), the Panel shall draw such
inferences as it considers appropriate from Respondent’s failure to respond
specifically to the statements and allegations contained in the Complaint.
Complainant
argues that Respondent’s <lowerallmybills.com> domain name is confusingly similar to Complainant’s LOWERMYBILLS.COM mark because
the domain name simply adds the generic term “all” to the mark. The Panel
agrees with this reasoning because the addition of a generic term is, in
general, insufficient to distinguish the domain name from the LOWERMYBILLS.COM
mark for the purposes of the Policy. Therefore, the domain name is confusingly
similar to the mark under Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing
similarity where the respondent’s domain name combined the complainant’s mark
with a generic term that had an obvious relationship to the complainant’s
business); see also Westfield
Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the
<westfieldshopping.com> domain name confusingly similar because the
WESTFIELD mark was the dominant element).
The disputed
domain name resolves to a
website that provides comparison shopping and information services that
directly compete with Complainant. The
Panel holds that Respondent’s use of a domain name that is confusingly similar
to Complainant’s mark to provide competing services is not a use in connection
with a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of
the domain name under 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); see also N. Coast Med., Inc.
v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no rights
or legitimate interests in a domain name that diverted Internet users to the
respondent’s competing website through the use of the complainant’s mark).
Further, Respondent has not argued (much
less provided evidence) that it has rights or legitimate interests in the
disputed domain name. For example, Respondent has not asserted that, prior to
the dispute, it was commonly known by that name.
Thus, the Panel holds that Complainant
has satisfied its burden of proving that Respondent has no rights or legitimate
interests in the disputed domain name.
Respondent uses the disputed domain name
to direct Internet users to Respondent’s competing commercial website. The
Panel holds that Respondent registered the domain name primarily for the
purpose of disrupting the business of a competitor, which evidences bad faith
registration and use under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July
18, 2000) (finding that the respondent registered the domain name in question
to disrupt the business of the complainant, a competitor of the respondent);
see also EthnicGrocer.com, Inc. v.
Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000)
(finding that the minor degree of variation from the complainant’s marks
suggests that the respondent, the complainant’s competitor, registered the
names primarily for the purpose of disrupting the complainant’s business); see
also Puckett v. Miller, D2000-0297
(WIPO June 12, 2000) (finding that the respondent diverted business from the
complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Furthermore, Respondent offered to sell
the disputed domain name registration to Complainant, at first for $50,000,
then later for $27,720. Respondent failed to provide adequate documentation of
its out-of-pocket costs directly related to the domain name. Given Respondent’s
documented behavior and lack of submissions to explain that behavior, the Panel
holds that Respondent registered the domain name primarily for the purpose of
selling the domain name registration to Complainant for more than Respondent’s
documented out-of-pocket costs. Thus, the Panel holds that Respondent
registered and used the disputed domain name in bad faith under Policy ¶
4(b)(i). See Banca Popolare
Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad
faith where the respondent offered the disputed domain name registrations for
sale); see also Little Six, Inc v. Domain
For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that the
respondent’s offer to sell the disputed domain name registration to the
complainant was evidence of bad faith); see also Moynahan v. Fantastic Sites, Inc., D2000-1083 (WIPO Oct. 22, 2000)
(finding bad faith where the respondent offered to sell the domain name
registration to the complainant for $10,000 when the respondent was contacted
by the complainant); see also Am. Online, Inc. v.
Prijic, FA 112639 (Nat. Arb. Forum June
27, 2002) (“[I]n determining whether Respondent has sought consideration in excess of its out-of-pocket
costs, the Policy makes clear that only costs related to the domain name are to
be considered, and not those related to the creation or maintenance of the
connected website.”).
DECISION
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lowerallmybills.com>
domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 27, 2005
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National Arbitration Forum