Americor
Mortgage, Inc. v. Robert D. Bowman
Claim
Number: FA0002000093548
PARTIES
Complainant is
Americor Mortgage Inc., Troy, MI (“Complainant”) represented by John S.
Artz. Respondent is Robert D.
Bowman, Santa Cruz, CA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at
issue is <zaploan.com>, registered with Network Solutions.
PANEL
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.
John J. Upchurch as
Panelist.
PROCEDURAL HISTORY
Complainant submitted
a Complaint to the National Arbitration Forum (the “Forum”) electronically on
February 2, 2000; the Forum received a hard copy of the Complaint on February 2, 2000 .
On February 8, 2000,
Network Solutions confirmed by e-mail to the Forum that the domain name is
registered with Network Solutions and that Respondent is the current registrant
of the name. Network Solutions has verified
that Respondent is bound by the
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 February 2, 2000, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of February 28, 2000 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@zaploan.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 March 1, 2000,
pursuant to Complainant’s request to have the dispute decided by a
single-member Panel, the Forum appointed John J. Upchurch as Panelist.
On March 14, 2000 the
Panelist issued an Order Staying Arbitration Proceedings Pending Bankruptcy in
recognition of the automatic stay provisions of United States bankruptcy
laws. This was necessary because Respondent
filed for bankruptcy before the United States Bankruptcy Court, Northern
District of California on December 3, 1999.
On October 15, 2001
the bankruptcy case was closed and the automatic stay of these proceedings thus
dissolved. On April 1, 2002
Complainant’s attorney informed the Forum of this development and the Order
Staying Arbitration Proceedings Pending Bankruptcy was lifted pursuant to the
terms of the Order.
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.
RELIEF SOUGHT
Complainant requests
that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The <zaploan.com>
domain name is identical to Complainant's ZAPLOAN mark.
Respondent has no rights
or legitimate interests in the disputed domain name.
Respondent registered
and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to
submit a Response.
FINDINGS
Complainant
has used its ZAPLOAN mark since 1995 in relation to mortgage lending
services. Complainant has registered
the mark with the United States Patent and Trademark Office as Registration No.
2,144,120 on March 17, 1998. Complainant
has used the mark continuously and has invested large sums of money into its
promotion.
Respondent
registered the disputed domain name on April 14, 1999. Respondent attempted to sell the disputed
domain name to Complainant for consideration greater than Respondent’s
out-of-pocket expenses. Respondent has
not developed a website at the disputed domain name.
DISCUSSION
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 the 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 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; and
(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.
Identical
and/or Confusingly Similar
Complainant
has established that it has rights in its ZAPLOAN mark through registration and
continuous use. Furthermore,
Respondent’s <zaploan.com> domain name is identical to
Complainant’s mark because Respondent incorporates the entirety of
Complainant’s mark and merely adds the generic top-level domain name
“.com.” The addition of a generic
top-level domain name does not create a distinct mark capable of overcoming a
claim of identical or confusing similarity.
See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000)
(finding <pomellato.com> identical to Complainant’s mark because the
generic top-level domain (gTLD) “.com” after the name POMELLATO is not
relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429
(WIPO June 25, 2000) (finding that the top level of the domain name such as
“.net” or “.com” does not affect the domain name for the purpose of determining
whether it is identical or confusingly similar).
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent
has failed to come forward with a Response and therefore it is presumed that
Respondent has no rights or legitimate interests in the disputed domain
name. See 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,
when Respondent fails to submit a Response the Panel is permitted to make all
inferences in favor of Complainant. See
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”).
Respondent
registered a domain name identical to Complainant’s ZAPLOAN mark and attempted
to sell the domain name to Complainant.
The sale of a domain name is not considered to be a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) and therefore, Respondent has
not demonstrated that it has rights or legitimate interests in <zaploan.com>. See Kinko’s Inc. v. eToll, Inc., FA
94447 (Nat. Arb. Forum May 27, 2000) (finding that Respondent has no rights or
legitimate interests in the domain name where it appeared that the domain name
was registered for ultimate use by Complainant); see also Cruzeiro
Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding
that rights or legitimate interests do not exist when one holds a domain name
primarily for the purpose of marketing it to the owner of a corresponding
trademark).
There
is no evidence on the record, and Respondent has not come forward to establish
that it is commonly known by the <zaploan.com> domain name
pursuant to Policy ¶ 4(c)(ii). See
Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5,
2001) (finding no rights or legitimate interests because Respondent is not
commonly known by the disputed domain name or using the domain name in
connection with a legitimate or fair use); see also CBS Broadcasting, Inc.
v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that
Respondent has failed to demonstrate any rights or legitimate interests in the
<twilight-zone.net> domain name since Complainant had been using the
TWILIGHT ZONE mark since 1959).
Respondent
has not used the disputed domain names in connection with a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) because it has no
website at the disputed domain name and registered <zaploan.com>
with the intention of selling it. See
Am. Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001)
(finding no rights or legitimate interests in the domain name
<solgarvitamins.com> where Respondent merely passively held the domain
name); see also Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO
Nov. 13, 2000) (finding no rights or legitimate interests where Respondent
failed to submit a Response to Complaint and had made no use of the domain name
in question); see also Hewlett-Packard Co. v. High Performance
Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights
or legitimate interests where Respondent registered the domain name with the intention
of selling the domain name).
Furthermore,
Respondent has failed to establish a website at the disputed domain name even
though it has owned <zaploan.com> for over a year. Respondent's passive holding of the domain
name demonstrates a lack of rights and legitimate interests. See Ziegenfelder Co. v. VMH Enter., Inc.,
D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or
service or develop the site demonstrates that Respondents have not established
any rights or legitimate interests in the domain name); see also Bloomberg
L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no
rights or legitimate interest can be found when Respondent fails to use
disputed domain names in any way).
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Registration
and Use in Bad Faith
The
<zaploan.com> domain name is identical to Complainant's mark and
the Internet user will likely believe that there is an affiliation between
Respondent and Complainant. Registration
of the <zaploan.com> domain name, despite it being identical, is
evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO
Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable
that Respondent could make any active use of the disputed domain names without
creating a false impression of association with Complainant”).
It
can be inferred from the circumstances that Respondent registered the disputed
domain name to sell the domain for profit.
According to Policy 4(b)(i) Respondent exhibits bad faith if
circumstances indicate that it has registered the disputed domain name
primarily for the purpose of selling or renting. Respondent attempted to sell the domain name to Complainant for
consideration that was in excess of its out-of-pocket expenses, and therefore
exhibited bad faith. See America
Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb.
Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names
for sale); see also Universal City Studios, Inc. v. Meeting Point Co.,
D2000-1245 (WIPO Dec. 7, 2000) (finding bad faith where Respondent made no use
of the domain names except to offer them to sale to Complainant); see also
Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000)
(finding that Respondent demonstrated bad faith when he requested monetary
compensation beyond out of pocket costs in exchange for the registered domain
name).
The
Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having
established all three elements required under the ICANN Policy, the Panel
concludes that the requested relief shall be hereby granted.
Accordingly,
it is Ordered that the domain name <zaploan.com> be transferred
from Respondent to Complainant.
John J. Upchurch, Panelist
Dated:
April 22, 2002
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