HomeVestors of America, Inc. v. Emily Rose / NCRS
Claim Number: FA2003001889990
Complainant is HomeVestors of America, Inc. (“Complainant”), represented by Valeri C. Williams of WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP, Texas, USA. Respondent is Emily Rose / NCRS (“Respondent”), Rhode Island, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <uglyhousesri.com>, registered with NameCheap, Inc. (the “Domain Name”).
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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 26, 2020; the Forum received payment on March 26, 2020.
On March 27, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <uglyhousesri.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 March 30, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 24, 2020 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@uglyhousesri.com. Also on March 30, 2020, 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.
A timely Response was received and determined to be complete on April 24, 2020.
A timely Additional Submission was received from Complainant on April 29, 2020.
A timely Additional Submission was received from Respondent on April 30, 2020.
On April 30, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a privately owned real estate franchise company that sells franchises to investors who buy homes in need of repair or homes that owners need to sell more quickly than can be done through a traditional sales arrangement with a realtor. Complainant’s franchisees typically renovate the houses they purchase and then sell or rent them to others. Complainant is well known for its slogan, “We Buy Ugly Houses,” which was granted service mark registration by the USPTO on September 30, 2002. Complainant owns a suite of trademark registrations comprising the words “UGLY HOUSES”.
The Domain Name is confusingly similar to Complainant’s trademarks.
Respondent has registered the Domain Name in the name of a lady, Emily Rose, who pre-deceased the date of registration of the Domain Name.
Respondent has no rights or legitimate interests in the Domain Name, and is using it in bad faith in respect of a website promoting a home renovation business in Rhode Island under the name “UGLY HOUSES RI” in direct competition with the home renovation services offered by Complainant under its trade marks in Rhode Island and elsewhere in the United States.
B. Respondent
Complaint has no rights in its various UGLY HOUSE trademarks as they are registered in the name of another entity. UGLY HOUSE is in any event a generic phrase.
Accordingly, Complaint has filed the Complaint in bad faith and without clean hands and all the other allegations in the Complaint should be dismissed.
Respondent registered the Domain Name on trust for Emily Rose.
C. Complainant’s Additional Submissions
The Response has not been signed and the Respondent has not been identified. Accordingly, the Response is deficient and should be disregarded.
Complainant holds its trademark registrations in its name in respect of relevant real estate related services.
D. Respondent’s Additional Submissions
The Complaint exceeds the word limit and Complainant did not seek prior approval in that regard.
Respondent filed the Response as J Rose, trustee of the Estate of Emily Rose.
Complainant has established all the elements entitling it to transfer of the domain names.
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.
Complaint possesses rights in its trademarks through registration and use. The Domain Name is confusingly similar to Complainant’s trademarks. The dominant feature of Complainant’s trademarks, UGLY HOUSES, is reproduced in the Domain Name.
Respondent does not possess any registered trademark rights in respect of the Domain Name. The use of the Domain Name in respect of Respondent’s competing website does not amount to rights or legitimate interest for the purposes of the Policy.
The manner of registration and use of the Domain Name amounts to bad faith. Respondent was clearly aware of Complainant and of its trademarks prior to registration of the Domain Name, and has made use of the Domain Name in bad faith under paragraph 4(b)(iv) of 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 <uglyhousesri.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: May 20, 2020
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