Generic Top Level Domain Name (gTLD) Decisions

Complainant is Arbor Mortgage Corporation, Grand Rapids, MI, USA ("Complainant") represented by Jason Schnelker, Siebers, Mohney, PLC. Respondent is Kevin Sipe, Harrison Twp., MI, USA ("Respondent").

The domain name at issue is "arbormortgage.com" registered with Network Solutions.

The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as the panelist in this proceeding.

Honorable Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on October 20, 2000; The Forum received a hard copy of the Complaint on October 23, 2000.

On October 23, 2000, Network Solutions confirmed by e-mail to The Forum that the domain name "arbormortgage.com" is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On October 24, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 13, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@arbormortgage.com by e-mail.

In reviewing the response, it appears that Respondent attempted to transfer the domain name in question to Arbor Mortgage National Corporation, an entity that is a competitor of Complainant. The Registrar, however, shows that Respondent remains the owner of the domain name.

On November 20, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Honorable Carolyn Marks Johnson as Panelist.

Complainant requests that the domain name be transferred from Respondent to Complainant.

Complainant holds a pending trademark for Arbor Mortgage Where Money Grows on Trees and first used the name in commerce September 24, 1998. The record further shows that Complainant was granted corporate status by the State of Michigan September 28, 2000, and was licensed as a first mortgage broker by the State of Michigan July 30, 1999. Two months later, an associate of Respondent Sipe established a sole proprietorship under the name "Arbor Mortgage" in September of 1999. Respondent registered the domain name "arbormortgage.com" on November 13, 1999. In July 2000, Complainant attempted to register the domain name arbormortgage, only to learn that Respondent had already registered its mark as a domain name. In August of 2000, Complainant’s counsel sent Respondent a cease and desist letter and Respondent first complied with that demand then offered to sell the domain name to Complainant for $10,000.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that a 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 the Complainant has rights;

(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.

Complainant contends that the Respondent’s domain name is identical to and/or confusingly similar to the Complainant’s ARBOR MORTGAGE service mark. See Anne of Green Gables Licensing Authority, Inc. v. Internetworks, AF 0109 (eResolution June 12, 2000) (finding that the domain name <anneofgreengables.com> is virtually identical to the Complainant’s mark ANNE OF GREEN GABLES). The Respondent makes no claims regarding Policy ¶ 4.a.(i).

The Panel finds that the domain name registered by Respondent is identical to Complainant’s mark.

Complainant contends that Respondent has no rights and legitimate interests in the domain name in question because Respondent agreed to cease using the name after learning of its infringement on the Complainant’s mark that was based upon Complainant’s recognized corporate status under that name in the State of Michigan. Furthermore, Complainant urges, after ceasing use of the infringing domain name, Respondent offered the domain name for sale, which is not a legitimate use of a domain name that infringes upon other’s marks. See Cree, Inc. v. The Domain Name You Have Entered is For Sale, FA 94790 (Nat. Arb. Forum May 24, 2000).

Respondent does not explicitly reveal rights or legitimate interests in the domain name; however merely offers a general denial of the Complaint

The Panel finds that Complainant established rights and legitimate interest in the mark Arbor Mortgage and that Respondent failed to show right or legitimate interest to it.

Complainant contends that Respondent registered the domain name with the intent of selling it for a consideration in excess of out of pocket costs, which constitutes evidence of bad faith. See General Electric Co. v. Forddirect.com, Inc., D2000-0394 (WIPO June 22, 2000) (finding that the Respondent registered and used the domain name in bad faith by using the domain name to direct users to a general site offering the domain name for sale).

Further, linking a domain name to another website for commercial gain that causes a likelihood of confusion as to the source, sponsorship, endorsement, or affiliation of the website also constitutes bad faith use of domain name. Policy ¶ 4b(iv). See Anne of Green Gable Licensing Authority, Inc. v. Internetworks, AF-00109 (eResolution June 12, 2000) (finding bad faith where Respondent used the domain name <anneofgreengables.com> to link users to a website that contains information about the Anne of Green Gables literary works, motion pictures and the author, L. M. Montgomery, where a visitor to the website may believe that the owner of the mark ANNE OF GREEN GABLES is affiliated with or has sponsored or endorsed Respondent's web site).

It is clear under ICANN Policy that registering a domain name primarily for the purpose of disrupting the business of a competitor also constitutes evidence of bad faith registration and use. Policy ¶ 4.b.(iii). See Puckett, Individually and d/b/a Nature’s Window v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has diverted business from the Complainant to a competitor’s website in violation of Policy 4(b)(iii).

Respondent contends that he did not register the domain name in bad faith or with the intent to sell the domain name. See LifePlan v. Life Plan, FA 94826 (Nat. Arb. Forum July 13, 2000) (finding that "the mere offering (of the domain name for sale), without more, does not indicate circumstances suggesting that Respondent ‘registered the domain name primarily for the purpose of selling,…’ the domain name to the Complainant). However, it is clear from the record in this case that Respondent became aware of his infringement upon Complainant’s mark, that Respondent reacted by ceasing to infringe upon Complainant’s mark, and that then Respondent returned to the arena in search of $10,000 as a consideration for transferring the domain name to Complainant. Respondent offered no evidence to show the amount of his reasonable costs of registering the domain name but it can be presumed that Respondent’s demand of $10,000 is a sum in excess of the reasonable costs of filing a domain name, which constitutes evidence of bad faith. ICANN’S Policy 4(b)(iv).

Looking to the totality of the circumstances as the Panel must, the Panel finds that Respondent’s conduct with regard to the registration and use of a domain based on Complainant’s corporate identity and mark evidences bad faith. See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the "totality of circumstances").

Complainant having satisfied the requirements of showing entitlement to the requested relief, the Panel finds that the domain name "arbormortgage.com" should be and is hereby Ordered to be transferred from Respondent to Complainant.