Quicken Loans Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1604001671806
Complainant is Quicken Loans Inc. (“Complainant”), represented by Brian D. Wassom of Honigman Miller Schwartz and Cohn LLP, Michigan, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clickandloan.net>, registered with TLD Registrar Solutions Ltd.
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.
Complainant submitted a Complaint to the Forum electronically on April 25, 2016; the Forum received payment on April 25, 2016.
On April 26, 2016, TLD Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <clickandloan.net> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions Ltd. 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 April 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2016 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@clickandloan.net. Also on April 28, 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 May 24, 2016 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is America’s largest online lender and second largest lender. Complainant has helped over 2 million American families finance their homes. In 2013-14, Complainant closed $140 billion of mortgage volume across all 50 states. The company has also become the nation’s largest FHA lender and VA mortgage provider.
Complainant states that it has registered the QUICKEN LOANS trademark in the United States in 2002. The mark is used in connection with the provision of loan financing, lending services, mortgage lending, and providing information on loans, all via electronic means. The mark is famous.
According to Complainant, the disputed domain name is confusingly similar to the QUICKEN LOANS trademark because the domain name is phonetically identical to the mark, in addition to bearing the generic top-level domain (“gTLD”) “.net.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known as the domain name, nor is Respondent a licensee of Complainant. Further, the domain name is being used to offer competing services, and therefore Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has engaged in bad faith registration and use. First, Respondent is using the domain name to offer competing services, and therefore disrupts Complainant’s business in bad faith under Policy ¶ 4(b)(iii). By offering the same or similar services, Respondent is also engaging in bad faith under Policy ¶ 4(b)(iv) because a likelihood of confusion has resulted, from which Respondent is attempting to profit. Furthermore, due to the fame and notoriety of Complainant’s QUICKEN LOANS mark, Respondent registered the domain name with actual and/or constructive knowledge of Complainant’s trademark rights. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CLICKEN LOANS and uses it to market lending services. The mark is well known.
Complainant’s registration of its mark dates back to 2002.
The disputed domain name was registered in 2014.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web site that provides services that compete with those of Complainant.
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 “clickandloan” portion of the domain name bares a significant phonetic similarity to the QUICKEN LOANS mark in terms of pronunciation. According to 1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"): “Application of the confusing similarity test under the UDRP would typically involve a straightforward visual or aural comparison of the trademark with the alphanumeric string in the domain name.” (emphasis added). Past panels have found that phonetic similarity is sufficient to find confusing similarity under the Policy, see Quicken Loans Inc. v. Laura Yun / Offshore Hosting Solutions Ltd., FA 1644564 (Forum Dec. 11, 2015); Barnes & Noble College Bookstores, Inc. v. Leasure Interactive, D2001-1216 (WIPO Mar. 25, 2002) (“The Panel further finds that the domain name <bunsandnoble.com> is confusingly similar to the BARNES & NOBLE marks in so far as the domain name is similar in sound to Complainant’s marks.”); Am. Online, Inc. v. Triple E Holdings Ltd., FA 281584 (Forum July 15, 2004) (“Words that are spelled differently but are phonetically similar do not negate the confusing similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).”); Microsoft Corporation v. Mike Rushton, D2004-0123 (WIPO April 27, 2004) (transferring because it “is phonetically identical to the MICROSOFT mark”). Further, prior panels have routinely found that such a gTLD fails to provide respondents with any distinguishing relief. See Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”). Consequently, the Panel finds that the disputed domain name is confusing similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant is not commonly known as the disputed domain name, nor is Respondent in possession of licensing rights that would allow him to use the QUICKEN LOAN mark in domain names. The Panel notes that “Domain Admin” is listed as the registrant of record for the disputed domain name. The Panel also notes that the record is devoid of any evidence to indicate that Respondent is either commonly known as the disputed domain name or in possession of licensing rights. Thus the Panel finds that Respondent does not have rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Further, Respondent’s use of the disputed domain name fails to consist of a bona fide offering of goods or services or a legitimate noncommercial or fair use. The disputed domain name is being used to host a website that offers competing consumer lending services. Prior panels have found that using a confusingly similar domain name to offer competing services fails to amount to a bona fide offering or a legitimate noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum March 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent does not have rights or legitimate interests under the Policy.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
As noted above, the disputed domain name resolves to a webpage that offers services that compete with Complainant’s services. Prior panels have established bad faith under Policy ¶ 4(b)(iii) where the domain name was used to offer such competing services. See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). Thus, the Panel finds that the disputed domain name was registered and is being used in bad faith pursuant to Policy ¶ 4(b)(iii).
Further, Respondent has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to profit from a likelihood of confusion. A likelihood of confusion is present because the domain name resolves to a webpage that offers the same or similar services that are marketed under the QUICKEN LOANS trademark. Prior panels have established bad faith under Policy ¶ 4(b)(iv) where the domain name resolved to a webpage that offered competing goods or services. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Thus, the Panel also finds that the Policy ¶ 4(b)(iv) bad faith is present.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <clickandloan.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 26, 2016
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