Quicken Loans Inc. v. Dempsey Mork / Magellan Capital
Claim Number: FA1701001712212
Complainant is Quicken Loans Inc. (“Complainant”), represented by Kristin Garris of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is Dempsey Mork / Magellan Capital (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <rocketonlinebusinessloans.com>, <rocketonlinebusinesloans.com>, <rocketonlineloans.com>, <rocketwins.com>, and <rocketfinancing.com>, registered with GoDaddy.com, LLC.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 12, 2017; the Forum received payment on January 12, 2017.
On Jan 13, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <rocketonlinebusinessloans.com>, <rocketonlinebusinesloans.com>, <rocketonlineloans.com>, <rocketwins.com>, and <rocketfinancing.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 January 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2017 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@rocketonlinebusinessloans.com, postmaster@rocketonlinebusinesloans.com, postmaster@rocketonlineloans.com, postmaster@rocketwins.com, postmaster@rocketfinancing.com. Also on January 16, 2017, 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 February 16, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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 names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant, Quicken Loans, Inc., is a lender and mortgage provider, specializing in online lending. In connection with this business, Complainant’s affiliated entity RockLoans Marketplace d/b/a “RocketLoans” uses the ROCKET family of marks—including ROCKETLOAN—to provide a national marketplace lending company specializing in personal loans. Complainant has rights in the ROCKETLOAN mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,288,697, registered Oct. 26, 1999). at Respondent’s domain names are confusingly similar, as they contain the ROCKET mark in its entirety, each adding words such as “online,” “business,” “loans,” “win,” and “financing,” and the generic top-level domain name (“gTLD”) “com.”
ii) Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by any of the disputed domain names, nor has Complainant authorized or licensed Respondent to use the ROCKETLOAN mark for any reason. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, each of the disputed domain names resolve to a website which Respondent uses in an attempt to pass off as Complainant and purport to offer services competitive with Complainant’s business. Respondent is using the resolving websites for a possible phishing or lead-generating scheme, further evidence of its lack of rights or legitimate interests.
iii) Respondent’s has registered and used the disputed domain names in bad faith. Respondent registered and is using the domain names in an attempt to pass off as Complainant and divert Internet users to Respondent’s competing website. Additionally, due to the widespread and long use of the ROCKETLOAN mark and the extensive promotion of the ROCKET marks, Respondent had actual knowledge of Complainant and its rights in the marks when Respondent registered and subsequently used the disputed domain names. Finally, further bad faith is evinced by Respondent’s use of the resolving websites for a possible phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that <rocketonlinebusinesloans.com>and <rocketonlineloans.com> were created on April 10, 2016; <rocketonlinebusinessloans.com> and <rocketwins.com> were created on April 20, 2016; and <rocketfinancing.com> was created on June 10, 2016.
Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain names.
Respondent registered and used the disputed domain names 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(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.”).
Complainant claims rights in the ROCKETLOAN mark based upon registration of the mark with the USPTO (Reg. No. 2,288,697, registered Oct. 26, 1999). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office). The Panel therefore holds that Complainant’s registration of the ROCKETLOAN mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant also claims rights to the ROCKET mark based upon a pending application with the USPTO. However, typically a pending trademark application does not grant rights in a mark per Policy ¶ 4(a)(i). See ValueVapor LLC v. Vicki Oxman, FA 1542157 (Forum Mar. 20, 2014) (denying Complainant’s rights under Policy ¶ 4(a)(i) as “[t]here is no evidence of a registered trademark and it has long been held that a pending application for registration is not sufficient to prove trademark rights.”). Complainant does not provide evidence for common law rights in the ROCKET mark. The Panel therefore holds Complainant does not have rights in the ROCKET mark and conclude the Policy ¶ 4(a)(i) analysis based upon the ROCKETLOAN mark.
The Panel next engages in an analysis for confusing similarity based upon Complainant’s claimed rights in the ROCKETLOAN mark. The Panel notes that <rocketonlinebusinessloans.com>, <rocketonlinebusinesloans.com>, and <rocketonlineloans.com> each contains the Complainant's mark in its entirety, merely adding the word “online,” the letter “s,” and the generic top-level domain (“gTLD”) “.com.” The <rocketonlinebusinessloans.com> and <rocketonlinebusinesloans.com> domain names also add the word “business,” spelled incorrectly in the case of <rocketonlinebusinesloans.com>. Addition of generic or descriptive words does not alleviate confusing similarity in a Policy ¶ 4(a)(i) analysis. See Am. Express Co. v. MustNeed.com, FA 257901 (Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Addition of a letter “s” to the end of a mark likewise does not distinguish a domain name from a mark. See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”). Finally, the addition of a gTLD to a mark in order to form a domain name is irrelevant in a Policy ¶ 4(a)(i) analysis. See Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Forum Sept. 6, 2007) (“Furthermore, the addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names.”). Thus the Panel finds Respondent’s <rocketonlinebusinessloans.com>, <rocketonlinebusinesloans.com>, and <rocketonlineloans.com> to be confusingly similar to the ROCKETLOAN mark pursuant to Policy ¶ 4(a)(i).
Respondent’s <rocketwins.com>and <rocketfinancing.com> domain names contain the ROCKETLOAN mark, but omit the “loan” portion of the mark while adding the terms “wins” or “financing” and the gTLD “.com.” As above, addition of a generic term and a gTLD does not distinguish a domain name under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Omission of one term in a mark to form a domain name may not distinguish the domain name for purposes of Policy ¶ 4(a)(i). See VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark under Policy ¶ 4(a)(i).). But cf. Dollar Fin. Group, Inc. v. Oakridge, FA 94977 (Forum July 17, 2000) (finding that the domain names, <tillpaydayloan.com>, <tillpaydayloans.com>, <untilpaydayloan.com>, and <untilpaydayloans.com> are not identical or confusingly similar to the complainant’s CASH ‘TIL PAYDAY and CASH ‘TIL PAYDAY LOANS trademarks and service marks). The Panel notes in the case of <rocketfinancing.com> that the term “loan” has been replaced with the very similar term “financing,” which may add weight to the Panel’s decision. The Panel therefore finds both of the <rocketwins.com>and <rocketfinancing.com> domain names to be confusingly similar to the ROCKETLOANS mark.
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 (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 (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 has no rights or legitimate interests in the disputed domain names as Respondent is not commonly known by any of the disputed domain names, nor has Complainant authorized Respondent to use the ROCKETLOAN mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The WHOIS information of record identifies Respondent as “Dempsey Mork” with “Magellan Capital.” Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register domain names using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by any of the disputed domain names.
Complainant further argues Respondent’s lack of rights or legitimate interests in the disputed domain names is evinced by their failure to use the names for a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, all five domain names currently or formerly are/were used to pass off as Complainant and purport to offer loan services in direct competition with those offered by Complainant. Use of a domain name to compete with a complainant is not a use indicative of rights or legitimate interests pursuant to Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 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).”). Complainant claims that Respondent’s <rocketonlinebusinessloans.com>, <rocketonlinebusinesloans.com>, <rocketonlineloans.com>, and <rocketwins.com> formerly prominently displayed rocket ship designs and images to promote financing and/or loan services that compete with services offered under Complainant’s marks. Respondent later registered <rocketfinancing.com> and posted nearly identical content on the resolving website, while changing the content at the other four disputed domain names to parked pages. The Panel agrees that Respondent’s behavior amounts to attempts to pass off as Complainant and/or compete with Complainant’s business and hold Respondent lacks rights or legitimate interests in the disputed domain names pursuant to Policy ¶¶ 4(c)(i) and (iii).
Complainant also contends, upon information and belief, that Respondent is using the current or formerly resolving websites to the disputed domain names for a possible phishing scheme. Use of a domain name in furtherance of a phishing scheme is evidence of lack of rights or legitimate interests per Policy ¶ 4(a)(ii). See Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”); see also Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Complainant points to applications on the resolving website which solicits personal information in order to allegedly open an account with Respondent. Complainant believes this solicitations is an attempt to harvest confidential personal information for financial gain. The Panel finds Complainant’s argument compelling, and holds Respondent demonstrates a lack of rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s registration and use of the disputed domain names amount to an attempt to divert Internet users to Respondent’s competing website for commercial gain. Use of a domain name to attract Internet users to a competing website can be evidence of bad faith per Policy ¶¶ 4(b)(iii) and (iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also CAN Financial Corporation v. William Thomson / CAN Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Complainant contends the evidence of Respondent’s bad faith is strengthened by Respondent’s attempt to pass off as Complainant. Passing off as a complainant can be further evidence of Policy ¶ 4(b)(iv) bad faith. See Tower Labs. Ltd. v. Seltzer, FA 791325 (Forum Oct. 16, 2006) (concluding that the respondent registered and was using the <bromoseltzer.com> domain name in bad faith because it displayed a logo similar to the complainant’s BROMO SELTZER mark, which was likely to confuse the public as to the source of the material exhibited at the respondent’s website). The Panel recalls that Respondent’s <rocketfinancing.com> currently resolves to a site nearly identical to the formerly resolving websites for the other four disputed domain names, and that the websites feature rocket logos similar to Complainant’s and purport to offer loan and/or financing services in direct competition with services offered by Complainant. The Panel therefore finds Respondent to have acted in bad faith pursuant to Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant further contends that due to its widespread and long use of the ROCKETLOAN mark and the extensive promotion of the ROCKET marks in late 2015 and early 2016, there can be no doubt that Respondent registered the disputed domain names with actual knowledge of Complainant's rights in the mark. The Panel here finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel, however, infers due to the fame of the Complainant's marks and the manner of use of the disputed domain names by Respondent that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Finally, Complainant argues that Respondent is likely using the disputed domain names in furtherance of a phishing scheme. Use of a domain name to obtain unsuspecting Internet users’ private, sensitive personal information can be evidence of Policy ¶ 4(a)(iii) bad faith. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). The Panel recalls that the current or former resolving websites for the disputed domain names include application forms which solicit sensitive personal information. The Panel agrees with Complainant as to the likelihood that the solicited information is being used illicitly, and finds Respondent to have acted in bad faith registration and use pursuant to policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rocketonlinebusinessloans.com>, <rocketonlinebusinesloans.com>, <rocketonlineloans.com>, <rocketwins.com>, and <rocketfinancing.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: February 22, 2017
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