DECISION

Rock Financial, A Quicken Loans Company v. Henry Chan

Claim Number:  FA0307000167917

PARTIES

Complainant is Rock Financial, A Quicken Loans Company, Livonia, MI, USA (“Complainant”) represented by Robert S. Gurwin, of Rader Fishman & Grauer PLLC. Respondent is Henry Chan, Nassau, Bahamas (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <rockfinanical.com>, registered with Dotregistrar.com.

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.

Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on July 3, 2003; the Forum received a hard copy of the Complaint on July 7, 2003.

On July 7, 2003, Dotregistrar.com confirmed by e-mail to the Forum that the domain name <rockfinanical.com> is registered with Dotregistrar.com and that Respondent is the current registrant of the name. Dotregistrar.com has verified that Respondent is bound by the Dotregistrar.com 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 July 7, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 28, 2003 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@rockfinanical.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 August 1, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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."  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 makes the following assertions:

1. Respondent’s <rockfinanical.com> domain name is confusingly similar to Complainant’s ROCK FINANCIAL mark.

2. Respondent does not have any rights or legitimate interests in the <rockfinanical.com> domain name.

3. Respondent registered and used the <rockfinanical.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Rock Financial, A Quicken Loans Company, is one of the top thirty mortgage lenders in the U.S. Complainant began its mortgage lender services in 1985, and by 2002 was closing over seven billion dollars in home loans annually. Complainant uses its mark at the <rockfinancial.com> domain name to provide information about its mortgage products and services and facilitate consumer application for its services, and has registered the mark in both the State of New York (Reg. No. S14408) and on the Principal Register of the U.S. Patent and Trademark Office (U.S. Reg. No. 2,167,203, registered on June 23, 1998 for the MORTGAGE IN A BOX ROCK FINANCIAL mark).

Respondent, Henry Chan, registered the <rockfinanical.com> domain name on April 10, 2003, without license or authorization to use Complainant’s ROCK FINANCIAL mark for any purpose. Respondent uses the domain name to redirect Internet users to a website containing hyperlinks to the websites of companies that offer mortgage services in competition with Complainant.

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 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 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.

Identical and/or Confusingly Similar

Complainant has established rights in the ROCK FINANCIAL mark through its state and federal registrations of the mark in the U.S., as well as through its continuous use of the mark in commerce since 1985.

Respondent’s <rockfinanical.com> domain name is confusingly similar to Complainant’s ROCK FINANCIAL mark. Besides eliminating the space between the words ROCK and FINANCIAL (which is a mandatory feature of domain names), Respondent has simply transposed two letters in the word FINANCIAL. This is not enough of a change to prevent the disputed domain name from being confusingly similar to Complainant’s mark. See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Pier 1 Imp., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that the domain name <peir1.com> is confusingly similar to Complainant's PIER 1 mark).

Accordingly, the Panel finds that the <rockfinanical.com> domain name is confusingly similar to Complainant’s ROCK FINANCIAL mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent uses the <rockfinanical.com> domain name to redirect Internet users to a website that provides access to a variety of companies that are in competition with Complainant. As Respondent is using the disputed domain name, which capitalizes on the goodwill surrounding Complainant’s ROCK FINANCIAL mark to drum up business for Complainant’s competitors, Respondent cannot be considered to be making a bona fide offering of goods or services at the disputed domain name pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). These Policy provisions are therefore inapplicable to Respondent. See Ameritrade Holdings Corporation and Ameritrade, Inc. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that Respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with Complainant, was not a bona fide offering of goods or services); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use).

The Panel would be hard pressed to find that Respondent is “commonly known by” the <rockfinanical.com> domain name pursuant to Policy ¶ 4(c)(ii), considering that the domain name is a misspelled phrase thats value rests in its relationship to Complainant’s ROCK FINANCIAL mark. As no affirmative evidence before the Panel points to the contrary, the Panel finds that Policy ¶ 4(c)(ii) does not apply to Respondent. See MRA Holding, LLC v. Costnet, FA 140454 (Nat. Arb. Forum Feb. 20, 2003) (noting that “the disputed domain name does not even correctly spell a cognizable phrase” in finding that Respondent was not “commonly known by” the name GIRLS GON WILD or <girlsgonwild.com>); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <rockfinanical.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered and used the <rockfinanical.com> domain name in bad faith. The disputed domain name is an example of typosquatting, the appropriation of a trademark holder’s mark with a typographical variation, done in order to attract Internet users attempting to reach the trademark holder’s website. In light of Respondent’s use of the domain name, the Panel infers that Respondent had actual knowledge of Complainant’s rights in the ROCK FINANCIAL mark when it registered the disputed domain name. Respondent’s use of the domain name to redirect Internet users to competitors of Complainant after such knowing registration is evidence that the domain name was registered and used in bad faith. See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”).

The Panel thus finds that Respondent registered and used the <rockfinanical.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

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

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

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  August 15, 2003

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