Quicken Loans Inc. v. Elizabeth J. Appleoff
Claim Number: FA1311001531562
Complainant is Quicken Loans Inc. (“Complainant”), represented by Gary Weingarden of Quicken Loans Inc., Michigan, USA. Respondent is Elizabeth J. Appleoff (“Respondent”), New Mexico, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rocketloan.net>, registered with TierraNet Inc. d/b/a DomainDiscover.
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.
Ho Hyun Nahm as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 25, 2013; the National Arbitration Forum received payment on December 4, 2013.
On December 4, 2013, TierraNet Inc. d/b/a DomainDiscover confirmed by e-mail to the National Arbitration Forum that the <rocketloan.net> domain name is registered with TierraNet Inc. d/b/a DomainDiscover and that Respondent is the current registrant of the name. TierraNet Inc. d/b/a DomainDiscover has verified that Respondent is bound by the TierraNet Inc. d/b/a DomainDiscover 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 9, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 2013 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@rocketloan.net. Also on December 9, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 3, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Ho Hyun Nahm 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" 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 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
a) Complainant was originally known as Rock Financial, and in 2000 Complainant changed its name to Quicken Loans. In 1998, while still known as Rock Financial, Complainant registered the trademark ROCKETLOAN in the fields of mortgage banking and financial services.
b) Complainant has rights in the ROCKETLOAN mark, used in connection with mortgage banking and financial services. Complainant owns a trademark registration for the ROCKETLOAN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,288,697 registered October 26, 1999).
c) Respondent’s <rocketloan.net> domain name is identical to Complainant’s ROCKETLOAN mark. The disputed domain name is composed entirely of Complainant’s mark.
d) Respondent does not have any rights or legitimate interests in the <rocketloan.net> domain name.
a. Respondent is not commonly known by the dispute domain name, and Complainant has not authorized Respondent to use its ROCKETLOAN mark in any way.
b. Respondent is using the <rocketloan.net> domain name to offer payday loans, which directly competes with Complainant. See Complainant’s Exhibits D-F.
e) Respondent registered and is using the <rocketloan.net> domain name in bad faith.
a. Respondent intentionally attempted to attract Internet users for Respondent’s own commercial gain by creating a likelihood of confusion with Complainant’s ROCKETLOAN mark. Respondent is using the <rocketloan.net> domain name to offer competing loan services. See Complainant’s Exhibit D-F.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <rocketloan.net> domain name on November 7, 2000.
Complainant established that it had rights in the mark contained in the disputed domain name.
Respondent has no rights to or legitimate interests in the disputed domain name.
The disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent registered and used the disputed domain name in bad faith.
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(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.”).
Complainant contends it has rights in the ROCKETLOAN mark, used in connection with mortgage banking and financial services. Complainant states that it owns a trademark registration for the ROCKETLOAN mark with the USPTO (Reg. No. 2,288,697 registered October 26, 1999). Therefore, the Panel finds that Complainant has rights in the ROCKETLOAN mark pursuant to Policy ¶ 4(a)(i) because Complainant has a valid trademark registration with the USPTO.
Complainant asserts that Respondent’s <rocketloan.net> domain name is confusingly similar to Complainant’s ROCKETLOAN mark. Complainant notes that the disputed domain name is composed entirely of Complainant’s mark. The Panel notes that the disputed domain name also includes the generic top-level domain (“gTLD”) “.net.” Past panels have held that the addition of a gTLD to a domain name that is otherwise identical to a complainant’s mark does distinguish the domain name from the complainant’s mark. See SCOLA v. Wick, FA 1115109 (Nat. Arb. Forum Feb. 1, 2008) (concluding that “the domain name at issue is identical to [the] complainant’s SCOLA mark, as the only alteration to the mark is the addition of the generic top-level domain “.com.”). Therefore, the Panel finds that Respondent’s <rocketloan.net> domain name is confusingly similar to Complainant’s ROCKETLOAN mark under Policy ¶ 4(a)(i).
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 (Nat. Arb. 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 (Nat. Arb. 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.”).
Complainant argues that Respondent does not have any rights or legitimate interests in the <rocketloan.net> domain name. Complainant states that Respondent is not commonly known by the dispute domain name, and Complainant has not authorized Respondent to use its ROCKETLOAN mark in any way. The Panel notes that the WHOIS record for the disputed domain name lists “Elizabeth J. Appleoff” as the domain name registrant. Past panels have looked to the WHOIS record, whether the respondent was authorized to use the trademark, and the evidence on record as whole in determining whether the respondent is commonly known by the disputed domain name. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Therefore, because Respondent was not authorized by Complainant to use the ROCKETLOAN mark, and neither the WHOIS information nor the other evidence on record indicates otherwise, the Panel finds that Respondent is not commonly known by the <rocketloan.net> domain name under Policy ¶ 4(c)(ii).
Complainant contends that Respondent is using the <rocketloan.net> domain name to offer payday loans, which directly competes with Complainant’s offerings. See Complainant’s Exhibits D-F. Past panels have found that using an identical domain name to offer competing products does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the respondent’s use of the <thechipmerchant.net>, <chipmerchant.com>, and <chipmerchant.net> domain names was illegitimate because the domain names were “virtually identical” to the complainant’s mark, did not constitute a bona fide offering of goods or services, and implied that the respondent intended to trade off of the complainant’s “goodwill and reputation” to sell competing goods). Therefore, the Panel finds that Respondent is not making a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because Respondent is using the <rocketloan.net> domain name to offer payday loans, which directly competes with Complainant.
Complainant claims Respondent registered and is using the <rocketloan.net> domain name in bad faith. Complainant asserts that Respondent is intentionally attempted to attract Internet users for Respondent’s own commercial gain by creating a likelihood of confusion with Complainant’s ROCKETLOAN mark. Complainant states that Respondent is using the <rocketloan.net> domain name to offer competing loan services. See Complainant’s Exhibit D-F. In previous cases, panels have held that using an identical domain name to offer goods or services in competition with a complainant demonstrates bad faith registration and use under Policy ¶ 4(b)(iv). See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant). Therefore, the Panel finds that Respondent registered and is using the <rocketloan.net> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent is using the <rocketloan.net> domain name to offer competing loan services.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rocketloan.net> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Panelist
Dated: January 8, 2014
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