DECISION

LendingTree, Inc. v. Ron Race

Claim Number: FA0408000307142

PARTIES

Complainant is LendingTree, Inc. (“Complainant”), 11115 Rushmore Drive, Charlotte, NC 28277.  Respondent is Ron Race (“Respondent”), represented by Richard J. Weitzman of Law Offices of Richard J. Weitzman, P.C., 1308 Spruce Street, Philadelphia, PA 19107.

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <lendingtrue.com>, registered with Domainbank.com.

PANEL

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

Linda M. Byrne as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on August 3, 2004; the Forum received a hard copy of the Complaint on August 9, 2004.

On August 6, 2004, Domainbank.com confirmed by e-mail to the Forum that the domain name <lendingtrue.com> is registered with Domainbank.com and that the Respondent is the current registrant of the name.  Domainbank.com has verified that Respondent is bound by the Domainbank.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 August 10, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 30, 2004 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@lendingtrue.com by e-mail.

A timely Response was received and determined to be complete on August 30, 2004.

On September 2, 2004, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Linda M. Byrne as Panelist.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

Complainant contends that Respondent's domain name <lendingtrue.com> is confusingly similar to its trademark LENDINGTREE; that Respondent does not have any rights or legitimate interest with respect to the domain name; and that the domain name was registered and is being used by Respondent in bad faith.

B. Respondent

Respondent alleges that <lendingtrue.com> is not confusingly similar to Complainant's LENDINGTREE mark, on the basis that the words “tree” and “true” are two distinctly different words.  Respondent contends that it registered the domain name <lendingtrue.com> pursuant to Respondent’s intention “to further market the ‘lending true’ concept as an implication in a consumer’s mind of Money Warehouse’s lending practices.”   Respondent also maintains that it did not register and use the domain names in bad faith.

FINDINGS

Complainant is the owner of the trademark LENDINGTREE, which it has registered in the United States in association with “computer services, namely, matching borrowers with potential lenders in the field of consumer and mortgage lending via a global computer network.”  These services are provided via Complainant’s <lendingtree.com> website.  Complainant has been using the LENDINGTREE trademark continuously since February 14, 1998.  An October 2002 Neilsen/Net Ratings survey ranked the LendingTree.com website the top site in the category of online “loan brands or channels.”  Also, a 2002 study by Chadwick Martin Bailey, Inc. found that the LendingTree.com website and the LENDINGTREE trademark have over three times the level of brand awareness as do Complainant’s nearest competitors.

Respondent is a manager of a local office of Money Warehouse, which is in the business of providing first and second mortgage loans to consumers and commercial enterprises.

 

On January 30, 2003, Respondent registered the domain name <lendingtrue.com>.  The domain name resolves to a site promoting the services of Money Warehouse and contains on its main page the heading for Moneywarehouse.com.  Respondent offers lending services under the names “lendingtrue” and “Money Warehouse” on the <lendingtrue.com> site. 

Customers have contacted LendingTree’s customer care department at least twice to report the existence of <lendingtrue.com> and to state that the site is confusingly similar to LendingTree.com.

Complainant contacted Respondent several times to request that Respondent stop using the <lendingtrue.com> name and transfer the domain name to Complainant.  Respondent did not reply to this correspondence.

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 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;

(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 argues that the <lendingtrue.com> domain name is confusingly similar to Complainant’s LENDINGTREE mark because the domain name merely replaces the letter “e” with the letter “u” in Complainant’s mark.  Respondent states that the word “true” has a different meaning and connotation than the word “tree” and that there is therefore no confusing similarity. 

In this situation, the domain name <lendingtrue.com> is almost identical to Complainant’s registered trademark LENDINGTREE.  Moreover, each party’s lending services are highly related if not identical, and both parties conduct business via the internet.  This Panel concludes that the one letter difference between “true” and “tree” does not prevent likelihood of confusion.  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); AccuWeather, Inc. v. Netchem, Inc., FA 95401 (Nat. Arb. Forum Sept. 19, 2000) (finding that “[t]he domain names are spelled identically to the Complainant’s mark except for the deletion of one letter.  Misspellings or typographical variations of registered marks cause confusing similarity with the mark.”); AltaVista Co. v. Stoneybrook, Case No. D2000-0886 (WIPO Oct. 26, 2000) (finding that the domain names <alfavista.com>, <atavista.com>, etc. were confusingly similar to the Complainant’s ALTAVISTA trademark).  The likelihood of confusion is further supported by the evidence of actual confusion that Complainant has submitted.

This panel concludes that the domain name <lendingtrue.com> is confusingly similar to Complainant’s LENDINGTREE mark.

Rights or Legitimate Interests

Once Complainant makes a prima facie case to establish that Respondent has no rights or legitimate interests, then the burden of proof shifts to Respondent to prove that it owns rights or legitimate interests in the domain name <lendingtrue.com>.  This Panel concludes that Complainant made a prima facie case with its argument that Respondent is not commonly known by the <lendingtrue.com> domain name, and the argument that Respondent’s business, by using a confusingly similar name, does not demonstrate rights or legitimate interests in the domain name.  See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name).

Respondent is the manager of an office of Money Warehouse, Inc., and Respondent states that it registered the domain name <lendingtrue.com> “for use in his business as manager of a local office of a licensed Mortgage Banker and Broker.”   The Response states, “While Respondent has not fully implemented its marketing concepts developed in association with the [<lendingtrue.com>] domain, Respondent does use the name and intends to further market the ‘lending true’ concept as an implication in a consumer’s mind of Money Warehouse’s lending practices.”   However, Respondent does not present any concrete evidence to support his future marketing plans, such as contacts, business plans, draft promotional materials, etc.  See Open Sys. Computing AS v. Alessandri, D2000-1393 (WIPO Dec. 11, 2000) (finding that Respondent did not establish rights and legitimate interests in the domain name where Respondent mentioned that it had a business plan for the website at the time of registration but did not furnish any evidence in support of this claim); see also Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that Respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and Respondent is not commonly known by the domain name). 

Moreover, Respondent’s use of <lendingtrue.com> diverts Internet users interested in Complainant’s services.  Respondent’s use of <lendingtrue.com> permits Respondent to benefit from the goodwill surrounding Complainant’s mark by attracting users to Respondent’s website in competition with Complainant’s business.  This type of activity does not constitute use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services); see also Ameritrade Holdings Corp. 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 Avery Dennison Corp. v. Steele, FA 133626 (Nat. Arb. Forum Jan. 10, 2003) (finding that Respondent had no rights or legitimate interests in the disputed domain name where it used Complainant’s mark, without authorization, to attract Internet users to its business, which competed with Complainant).

For the above reasons, this Panel concludes that Respondent has no rights or legitimate interest in respect to the domain name <lendingtrue.com>.

Registration and Use in Bad Faith

In view of the similarity between the parties’ marks and services, this Panel concludes that Respondent is using the <lendingtrue.com> domain name to divert Internet users searching for Complainant’s services to Respondent’s website.  Furthermore, the Panel concludes that Respondent is attempting to benefit from the goodwill associated with Complainant’s LENDINGTREE mark.  Respondent’s practice of diversion, motivated by commercial gain, is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with Complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks).

It appears that Respondent registered the <lendingtrue.com> domain name for the primary purpose of disrupting Complainant’s business by redirecting Internet traffic intended for Complainant to Respondent’s website, a website that competes with Complainant.  Registration of a domain name for the primary purpose of disrupting the business of a competitor is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from Complainant's marks suggests that Respondent, Complainant’s competitor, registered the names primarily for the purpose of disrupting Complainant's business); see also Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has diverted business from Complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).

Respondent had actual or constructive knowledge of Complainant’s LENDINGTREE mark when Respondent registered and used the <lendingtrue.com> domain name, because Respondent and Complainant are engaged in the same industry.  Registration of a domain name confusingly similar to Complainant’s mark, despite knowledge of Complainant’s rights, is evidence of bad faith registration and use.  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between Complainant’s mark and the content advertised on Respondent’s website was obvious, Respondent “must have known about the Complainant’s mark when it registered the subject domain name”).

In view of the above, this Panel concludes that Respondent has used and registered the domain name <lendingtrue.com> in bad faith.

DECISION

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

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

 Linda M. Byrne, Panelist
Dated:  September 21, 2004

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