national
arbitration forum
DECISION
Ocwen Financial Corporation v. Ocwen Financial
Corporation c/o Domain Contact
Claim
Number: FA0811001235699
PARTIES
Complainant is Ocwen Financial Corporation (“Complainant”), represented by Halle
B. Markus, of Arent Fox LLP, Washington, DC, USA. Respondent is Ocwen Financial Corporation c/o Domain
Contact (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwocwencustomers.com>, registered
with Above, Inc.
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.
The Honorable
Charles K. McCotter, Jr. (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to
the National Arbitration Forum electronically on November 25,
2008; the National Arbitration Forum received a hard copy of
the Complaint on November 25, 2008.
On November 25,
2008, Above, Inc.
confirmed by e-mail to the National Arbitration Forum that the <wwwocwencustomers.com>
domain name is registered with Above, Inc.
and that Respondent is the current registrant of the name. Above, Inc.
has verified that Respondent is bound by the Above,
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 December 2, 2008,
a Notification of Complaint and Commencement of Administrative Proceeding (the
"Commencement Notification"), setting a deadline of December 22, 2008
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@wwwocwencustomers.com
by e-mail.
Having received no response from
Respondent, the National Arbitration Forum transmitted to the parties a
Notification of Respondent Default.
On December 26, 2008, pursuant to
Complainant's request to have the dispute decided by a single-member Panel, the
National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr.
(Ret.) as Panelist.
Having reviewed the communications
records, the Administrative Panel (the "Panel") finds that the
National Arbitration 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 National
Arbitration 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 makes the following assertions:
1. Respondent’s
<wwwocwencustomers.com>
domain name is confusingly similar to Complainant’s OCWEN mark.
2. Respondent
does not have any rights or legitimate interests in the <wwwocwencustomers.com> domain name.
3. Respondent
registered and used the <wwwocwencustomers.com>
domain name in bad faith.
B.
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Ocwen Financial
Corporation, is a non-prime mortgage servicer.
The United States Patent and Trademark Office (“USPTO”) issued Complainant a trademark in the OCWEN mark on March 14, 2000 (Reg.
No. 2,330,061) in connection with its financial services company. In addition, Complainant has maintained an
online presence through the <ocwencustomers.com> domain name since 2006.
Respondent registered the <wwwocwencustomers.com>
domain name on November
12, 2007. Respondent is
using the disputed domain name to resolve to a website that displays links to
third-party websites that directly compete with Complainant.
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 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. 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 (Nat. Arb.
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.”).
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.
Identical and/or Confusingly Similar
Complainant must first show it has rights in the OCWEN
mark. Registration with the USPTO is
sufficient to meet this burden and the Panel finds that Complainant has rights
in the OCWEN mark pursuant to Policy ¶ 4(a)(i). See Mattel, Inc. v. KPF, Inc., FA 244073 (Nat. Arb. Forum Apr. 26, 2004)
(“Complainant established rights in the BARBIE mark through registration with
the U.S. Patent and Trademark Office (‘USPTO’).”); see also Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007)
(“Complainant’s trademark registrations with the USPTO adequately demonstrate
its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”).
The <wwwocwencustomers.com>
domain name contains Complainant’s OCWEN mark in its entirety preceded by the
letters “www” and followed by the generic term “customers” and the generic
top-level domain (gTLD) “.com.” It is
well established that the addition of a gTLD is irrelevant to Policy ¶ 4(a)(i) analysis. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat.
Arb. Forum May
27, 2003) (“The addition of a top-level domain is irrelevant when
establishing whether or not a mark is identical or confusingly similar, because
top-level domains are a required element of every domain name.”). The addition of the generic term “customers”
does not dispel the confusing similarity that results from using Complainant’s
entire OCWEN mark. See Arthur Guinness Son &
Co. (Dublin)
Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding
confusing similarity where the domain name in dispute contains the identical
mark of the complainant combined with a generic word or term); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding
that because the subject domain name incorporates the VIAGRA mark in its
entirety, and deviates only by the addition of the word “bomb,” the domain name
is rendered confusingly similar to the complainant’s mark). The <wwwocwencustomers.com>
domain name mimics Complainant’s <ocwencustomers.com> domain name, adding
“www” at the beginning of the disputed domain name. The addition of “www” to the beginning of the
disputed domain name takes advantage of Internet users’ typographical error in
omitting the period while typing a domain name, resulting in confusing
similarity. See Neiman
Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002)
(holding confusing similarity has been established because the prefix “www”
does not sufficiently differentiate the <wwwneimanmarcus.com> domain name
from the complainant's NEIMAN-MARCUS mark); see
also Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000)
(finding that the respondent’s domain name <wwwbankofamerica.com> is
confusingly similar to the complainant’s registered trademark BANK OF AMERICA
because it “takes advantage of a typing error (eliminating the period between
the www and the domain name).). The
Panel finds that the <wwwocwencustomers.com>
domain name is confusingly similar to the OCWEN mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. If the Panel finds
that Complainant’s allegations establish such a prima facie case, the
burden shifts to Respondent to show that it does indeed have rights or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). Since no Response was
submitted in this case, the Panel may presume that Respondent has no rights or
legitimate interests in the disputed domain name. See Compagnie Generale des Matieres
Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001)
(“Proving that the Respondent has no rights or legitimate interests in respect
of the Domain Name requires the Complainant to prove a negative. For the
purposes of this sub paragraph, however, it is sufficient for the Complainant
to show a prima facie case and the burden of proof is then shifted on to the
shoulders of Respondent. In those
circumstances, the common approach is for respondents to seek to bring themselves
within one of the examples of paragraph 4(c) or put forward some other reason
why they can fairly be said to have a relevant right or legitimate interests in
respect of the domain name in question.”); see
also G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission
constitutes a prima facie case under the Policy, the burden effectively
shifts to Respondent. Respondent’s failure to respond means that Respondent has
not presented any circumstances that would promote its rights or legitimate interests
in the subject domain name under Policy ¶ 4(a)(ii).”); see also Broadcom Corp. v.
Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22,
2004) (“Respondent’s failure to respond to the Complaint functions as an
implicit admission that [Respondent] lacks rights and legitimate interests in
the disputed domain name. It also
allows the Panel to accept all reasonable allegations set forth…as true.”). The Panel finds that Complainant’s
allegations are sufficient to establish a prima
facie case that Respondent has no rights or legitimate interests in the <wwwocwencustomers.com> domain name
pursuant to Policy ¶ 4(a)(ii). However,
the Panel will still examine the record in consideration of the factors listed
in Policy ¶ 4(c).
The WHOIS
information for the <wwwocwencustomers.com>
domain name identifies Respondent as “Ocwen
Financial Corporation c/o Domain Contact,” listing Complainant’s address as the
contact address. However, Complainant
asserts that it does own or have access to the disputed domain name. The
Panel finds that WHOIS information using a name related to the disputed domain
name is insufficient, without additional proof from Respondent, to prove it is
commonly known by the <wwwocwencustomers.com>
domain name under Policy ¶ 4(c)(ii).
See Ultimate Elecs.,
Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (“[O]ther
than Respondent’s infringing use of the ULTIMATE ELECTRONICS mark on its web
page and in its domain name . . . , there is no evidence that Respondent is
commonly known by the <ultimateelectronics.net> domain name pursuant to
Policy ¶ 4(c)(ii), or that there is any other entity
besides Complainant authorized to trade as ULTIMATE ELECTRONICS.”); see also Hewlett-Packard Co. v. HP Supplies, FA 282387 (Nat. Arb.
Forum July 22,
2004) (“The Panel finds, because of the prominence of the HP mark,
that Respondent’s registration under the ‘HP Supplies’ name does not establish
that Respondent is commonly known by the
<hpsupplies.com> domain
name.”).
Respondent is using the disputed domain name to display
links to third-party sites that are direct competitors with Complainant. Using a domain name that is confusingly
similar to another’s mark to divert Internet users to directly competing
websites 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
Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat.
Arb. Forum Sept.
8, 2000) (finding that the respondent’s website, which is blank but
for links to other websites, is not a legitimate use of the domain names); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb.
Forum Dec. 31,
2002) (finding that the respondent’s diversionary use of the
complainant’s marks to send Internet users to a website which displayed a
series of links, some of which linked to the complainant’s competitors, was not
a bona fide offering of goods or services).
Typosquatting is when a respondent purposefully includes
typographical errors in the domain name to divert Internet users who commit the
typographical error the domain name takes advantage of. The <wwwocwencustomers.com>
domain name takes advantage of Internet users who omit the period after the
“www” prefix at the beginning of domain names.
The Panel finds that Respondent is engaged in typosquatting by adding
“www” to the beginning of the domain name, which is further evidence that Respondent
does not have rights or legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(a)(ii). See Black & Decker
Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003)
(finding no rights or legitimate interests where the respondent used the
typosquatted <wwwdewalt.com> domain name to divert Internet users to a
search engine webpage, and failed to respond to the complaint); see also Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******,
FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of
the complainant’s DINERS CLUB mark, was evidence in and of itself that the
respondent lacks rights or legitimate interests in the disputed domain name vis
á vis the complainant).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Respondent’s use of
Complainant’s OCWEN mark in the
<wwwocwencustomers.com>
domain name to divert Internet users
to Complainant’s competitors suggests that Respondent registered the disputed
domain name intending to disrupt Complainant’s business. The Panel finds that this is evidence of 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 Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert Internet
users to a competitor's website. It is a reasonable inference that Respondent's
purpose of registration and use was to either disrupt or create confusion for
Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii)
[and] (iv).”).
The Panel infers
that Respondent receives click-through fees for diverting Internet users to
Complainant’s competitors. Because
Respondent’s domain name is confusingly similar to Complainant’s OCWEN
mark, Internet users accessing
Respondent’s disputed domain name may become confused as to Complainant’s
affiliation with the resulting website.
Respondent is attempting to profit from this confusion via the
click-through-fees. Thus, Respondent’s
use of the <wwwocwencustomers.com>
domain name constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co.
v. Celebrex Drugstore, FA 123933 (Nat. Arb.
Forum Nov. 21,
2002) (finding that the respondent registered and used the domain
name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was
using the confusingly similar domain name to attract Internet users to its
commercial website); see also AltaVista Co.
v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy
¶ 4(b)(iv) where the respondent’s domain name resolved to a website that
offered links to third-party websites that offered services similar to the
complainant’s services and merely took advantage of Internet user mistakes).
Furthermore, the Panel finds that Respondent’s engagement in
typosquatting is evidence that Respondent registered and is using the <wwwocwencustomers.com> domain name
in bad faith pursuant to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc.
v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the
intentional misspelling of words with [the] 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. Skander, 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,” which is
evidence of bad faith registration and use).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
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 <wwwocwencustomers.com> domain name
be TRANSFERRED from Respondent to Complainant.
The
Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 5, 2009
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