DECISION

Americor Mortgage, Inc. v. Robert D. Bowman

Claim Number: FA0002000093548

PARTIES

Complainant is Americor Mortgage Inc., Troy, MI (“Complainant”) represented by John S. Artz.  Respondent is Robert D. Bowman, Santa Cruz, CA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <zaploan.com>, registered with Network Solutions.

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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on February 2, 2000; the Forum received a hard copy of the Complaint on  February 2, 2000 .

On February 8, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name 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  registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On February 2, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 28, 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@zaploan.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On March 1, 2000, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.

On March 14, 2000 the Panelist issued an Order Staying Arbitration Proceedings Pending Bankruptcy in recognition of the automatic stay provisions of United States bankruptcy laws.  This was necessary because Respondent filed for bankruptcy before the United States Bankruptcy Court, Northern District of California on December 3, 1999.

On October 15, 2001 the bankruptcy case was closed and the automatic stay of these proceedings thus dissolved.  On April 1, 2002 Complainant’s attorney informed the Forum of this development and the Order Staying Arbitration Proceedings Pending Bankruptcy was lifted pursuant to the terms of the Order.

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.”  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.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

The <zaploan.com> domain name is identical to Complainant's ZAPLOAN mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant has used its ZAPLOAN mark since 1995 in relation to mortgage lending services.  Complainant has registered the mark with the United States Patent and Trademark Office as Registration No. 2,144,120 on March 17, 1998.  Complainant has used the mark continuously and has invested large sums of money into its promotion.

Respondent registered the disputed domain name on April 14, 1999.  Respondent attempted to sell the disputed domain name to Complainant for consideration greater than Respondent’s out-of-pocket expenses.  Respondent has not developed a website at the disputed domain name. 

DISCUSSION

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.”

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the 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.

Identical and/or Confusingly Similar

Complainant has established that it has rights in its ZAPLOAN mark through registration and continuous use.  Furthermore, Respondent’s <zaploan.com> domain name is identical to Complainant’s mark because Respondent incorporates the entirety of Complainant’s mark and merely adds the generic top-level domain name “.com.”  The addition of a generic top-level domain name does not create a distinct mark capable of overcoming a claim of identical or confusing similarity.  See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  See 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”).

Respondent registered a domain name identical to Complainant’s ZAPLOAN mark and attempted to sell the domain name to Complainant.  The sale of a domain name is not considered to be a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and therefore, Respondent has not demonstrated that it has rights or legitimate interests in <zaploan.com>.  See Kinko’s Inc. v. eToll, Inc., FA 94447 (Nat. Arb. Forum May 27, 2000) (finding that Respondent has no rights or legitimate interests in the domain name where it appeared that the domain name was registered for ultimate use by Complainant); see also Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark).

There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by the <zaploan.com> domain name pursuant to Policy ¶ 4(c)(ii).  See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).

Respondent has not used the disputed domain names in connection with a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) because it has no website at the disputed domain name and registered <zaploan.com> with the intention of selling it.  See Am. Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where Respondent merely passively held the domain name); see also Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where Respondent failed to submit a Response to Complaint and had made no use of the domain name in question); see also Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where Respondent registered the domain name with the intention of selling the domain name).

Furthermore, Respondent has failed to establish a website at the disputed domain name even though it has owned <zaploan.com> for over a year.  Respondent's passive holding of the domain name demonstrates a lack of rights and legitimate interests.  See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in the domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Registration and Use in Bad Faith

The <zaploan.com> domain name is identical to Complainant's mark and the Internet user will likely believe that there is an affiliation between Respondent and Complainant.  Registration of the <zaploan.com> domain name, despite it being identical, is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).  See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable that Respondent could make any active use of the disputed domain names without creating a false impression of association with Complainant”).

It can be inferred from the circumstances that Respondent registered the disputed domain name to sell the domain for profit.  According to Policy 4(b)(i) Respondent exhibits bad faith if circumstances indicate that it has registered the disputed domain name primarily for the purpose of selling or renting.  Respondent attempted to sell the domain name to Complainant for consideration that was in excess of its out-of-pocket expenses, and therefore exhibited bad faith.  See America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale); see also Universal City Studios, Inc. v. Meeting Point Co., D2000-1245 (WIPO Dec. 7, 2000) (finding bad faith where Respondent made no use of the domain names except to offer them to sale to Complainant); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that Respondent demonstrated bad faith when he requested monetary compensation beyond out of pocket costs in exchange for the registered domain name).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <zaploan.com> be transferred from Respondent to Complainant.

                                                           

John J. Upchurch, Panelist

Dated:  April 22, 2002