Rocket Mortgage, LLC v. clyde joyner
Claim Number: FA2303002034825
Complainant is Rocket Mortgage, LLC (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California. Respondent is clyde joyner (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rocketmortgageapplication.com>, registered with Google LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on March 7, 2023. Forum received payment on March 7, 2023.
On March 8, 2023, Google LLC confirmed by e-mail to Forum that the <rocketmortgageapplication.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 March 10, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2023 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@rocketmortgageapplication.com. Also on March 10, 2023, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On March 10, 2023, Respondent sent an informal email to Forum that did not comply with Supplemental Rule 7 and is not considered in this decision.
On April 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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,
Rocket Mortgage, LLC is America’s largest mortgage lender. Complainant has
rights in the ROCKET
MORTGAGE mark based upon registration with the United States Patent
and Trademark Office (“USPTO”). Complainant uses the domain name <rocketmortgage.com>
in connection with its online lending services. This domain name has been
registered since 1999. Respondent’s <rocketmortgageapplication.com>
is confusingly similar to
Complainant’s ROCKET MORTGAGE mark.
Because Respondent is not commonly known by the <rocketmortgageapplication.com> domain name and is not using the domain name for a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of it, Respondent lacks any rights or legitimate interests in the domain name, which currently resolves to an inactive webpage.
Respondent registered and uses the <rocketmortgageapplication.com> domain name in bad faith for commercial gain and in an attempt to benefit from the goodwill and reputation associated with Complainant’s ROCKET MORTGAGE mark. Respondent inactively holds the domain name and offered to sell it to Complainant for $5,000, being more than its registration cost.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 has shown that it has rights in the ROCKET MORTGAGE mark based upon registration with the USPTO (e.g., Reg. no. 2,288,697, registered October 26, 1999). The Panel finds Respondent’s <rocketmortgageapplication.com> domain name to be confusingly similar to Complainant’s ROCKET MORTGAGE trademark because it incorporates the mark in its entirety and adds the descriptive word “application”, which does not distinguish the domain name from the mark, and the inconsequential generic top-level domain name (“gTLD”) “.com”, which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <rocketmortgageapplication.com> domain name was registered on May 26, 2022, long after Complainant has shown that its ROCKET MORTGAGE mark had become distinctive and well-known in the United States, where Respondent resides. It does not resolve to an active website.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <rocketmortgageapplication.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out some circumstances which shall be evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy. As noted in the WIPO Jurisprudential Overview 3.0, Section 3.1, those circumstances are not exclusive and a complainant may demonstrate bad faith under paragraph 4(a)(iii) by showing that a respondent seeks to take unfair advantage of, abuse, or otherwise engage in behavior detrimental to the complainant’s trademark.
Respondent’s offer to sell the domain name to Complainant was made in response to Complainant’s Counsel’s invitation to Respondent to transfer the domain name, after a prior complaint involving multiple respondents, of whom Respondent was one, was dismissed without prejudice. See FA2209002011369 (Forum October 21, 2022). This does not demonstrate that Respondent registered the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to Complainant, as required for a finding of bad faith within paragraph 4(b)(i) of the Policy.
However, the circumstances set out above in relation to the second element, together with the use of the word “application” in the domain name, satisfy the Panel that Respondent was fully aware of Complainant’s well-known ROCKET MORTGAGE mark when Respondent registered the <rocketmortgageapplication.com> domain name and that Respondent did so in bad faith with intent to take unfair advantage of Complainant’s mark.
Although the <rocketmortgageapplication.com> domain name does not resolve to an active website, as in the leading case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, there is no conceivable active use that could be made of the domain name that would not amount to an infringement of Complainant’s rights in its ROCKET MORTGAGE mark. Accordingly, the Panel finds that Respondent’s passive use of the domain name demonstrates registration and use in bad faith.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rocketmortgageapplication.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: April 8, 2023.
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