Quicken Loans Inc. v. qian mengdan
Claim Number: FA1904001838128
Complainant is Quicken Loans Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is qian mengdan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com>, registered with NameSilo, LLC.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 9, 2019; the Forum received payment on April 9, 2019.
On April 10, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 April 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 6, 2019 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@rocketmrtgage.com, postmaster@rocketortgage.com, postmaster@rocketmortgge.com. Also on April 15, 2019, 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 9, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, 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
Complainant is a well-known provider of money lending services, with a particularly visible presence online. Complainant offers many different types of home mortgages, including FHA Loans, 30-Year Fixed-Rate Mortgages, VA loans, 15-Year Fixed-Rate Mortgages, Adjustable Rate Mortgages, Jumbo Loans, and FHA Streamline Loans. Complainant has rights in the trademark ROCKET MORTGAGE through its extensive use and its registration of the mark with the United States Patent and Trademark Office (“USPTO”) based on a 2014 application. Respondent’s <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names, registered in January of 2018, are identical or confusingly similar to Complainant’s mark as they each omit one letter from the ROCKET MORTGAGE mark and add the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain names to commercially benefit from pay-per-click links redirecting users to various third-party services. Additionally, Respondent has attempted to sell the domain names to the Complainant for a profit.
Respondent registered and uses the <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names in bad faith for commercial gain and in an attempt to benefit from the goodwill and reputation associated with Complainant’s ROCKET MORTGAGE mark. Further, Respondent has engaged in typosquatting. Finally, Respondent must have known of Complainant’s rights in the ROCKET MORTGAGE mark prior to registering the domain name given the longstanding fame and notoriety associated with the mark and the near identity of the domains to the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the disputed domain names were registered and are being used by Respondent 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the trademark ROCKET MORTGAGE through its extensive use in commerce and its registration of the mark with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”) Accordingly, the Panel finds that Complainant has established rights in the ROCKET MORTGAGE mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names are identical or confusingly similar to Complainant’s mark as they each omit one letter from the ROCKET MORTGAGE mark and add the “.com” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA 1783121 (Forum June 1, 2018) (“Respondent’s <morganstanle.com> domain name is confusingly similar to Complainant’s MORGAN STANLEY mark as it wholly incorporates the mark, but for the omission of the letter ‘y’ and spacing within the mark, and appends the ‘.com’ gTLD.”) The Panel therefore finds that the disputed domain names are confusingly similar to the ROCKET MORTGAGE 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). Should it succeed in that effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent has no rights or legitimate interests in the <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names as Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Relevant information includes the WHOIS record, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”) The WHOIS records for the disputed domains identifies “qian mengdan” as the registrant, and nothing in the records or the other evidence presented in this case indicates that Respondent is known otherwise or that Complainant authorized Respondent to use the mark for any purpose. Accordingly, the Panel agrees that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent uses the domain names to commercially benefit from click-through links redirecting users to various third-party services. Using a confusingly similar domain name to offer generic links to third-party services generally does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See CDW LLC v. Spencer Askew, 1806931 (Forum Oct. 22, 2018) (“Respondent employs the <cdw-logistics.com> domain name to profit by diverting internet users to a parked webpage that contains [unrelated] pay-per-click hyperlinks. This use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”). Complainant provides screenshots of the resolving webpages for the disputed domains which display various links that, in many cases, closely correlate to Complainant’s business in the field of mortgage lending and lead to the websites of its competitors.[i] Although not a formal response in this case, in its email correspondence with the Complainant’s Representative the Respondent mentioned that “i am registering these domains just for making tests.” The Respondent provides no further detail on these claimed tests and the Panel notes that such statement was made only after the Respondent unsuccessfully sought to sell the disputed domains to Complainant for $85 per domain and then reduced to $20 each. In view of the evidence and information presented, the Panel finds that Respondent’s use of the domain names to link users to various third-parties fails to amount to any bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Further, Complainant asserts that Respondent attempted to sell the domain names to Complainant for a profit. Offering a confusingly similar domain name for sale can evince a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name). Complainant provides a copy of email correspondence between itself and Respondent, which shows that Respondent offered to sell the domain names to Complainant for, at first, $85 per domain and then reduced to $20 each, plus unknown transfer fees. As such, the Panel finds that Respondent offered to sell the disputed domain names to Complainant which, upon a preponderance of the evidence, indicates that it possesses no rights or legitimate interests in the domains for the purposes of Policy ¶ 4(a)(ii).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the ROCKET MORTGAGE mark at the time of registering the at-issue domain names. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant contends that Respondent’s knowledge can be inferred given the longstanding fame and notoriety associated with the mark and the close identity of the disputed domains with Complainant’s distinctive mark – each differing only by the omission of a single letter. The Panel agrees with Complainant and finds it more likely than not that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration under Policy ¶ 4(a)(iii).
Complainant next claims that Respondent registered and uses the <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names in bad faith for commercial gain and in an attempt to benefit from the goodwill and reputation associated with Complainant’s ROCKET MORTGAGE mark. Using a confusingly similar domain name to trade upon the goodwill of a complainant’s mark for commercial gain through the display of monetized hyperlinks can evince bad faith under Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). As mentioned above, the evidence of record shows that the resolving webpages of the disputed domains displays various links to third parties in the mortgage lending industry. Accordingly, the Panel agrees that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Finally, Complainant avers that Respondent has engaged in typosquatting. A finding of typosquatting, the practice of registering domain names with intentional and common spelling errors, can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”) The Panel observes that, to arrive at each of the disputed domain names, Respondent omitted one letter from Complainant’s ROCKET MORTGAGE mark. Thus, the Panel agrees with Complainant and finds that Respondent’s changes of the spelling of Complainant’s mark in the domain names further demonstrate Respondent’s bad faith under the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rocketmrtgage.com>, <rocketortgage.com>, and <rocketmortgge.com> domain names be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: May 10, 2019
[i] Complainant provides screenshots of the home pages of the disputed domain names’ websites to support this contention but they only show a number of category headings, not actual links to third-party websites. However, the Panel’s independent review of these websites confirms that, when a user clicks on one of these category headings, the site does display pay-per-click links which lead to various third-party websites that offer services in Complainant’s industry.
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