WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Lenox Financial Mortgage, LLC v. Dave Saavedra / SP Case No. D2008-1724 1. The Parties
The Complainant is Lenox Financial Mortgage, LLC of Atlanta, Georgia, United States of America (“United States”), represented internally.
The Respondent is Dave Saavedra / SP of Carlsbad, California, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with UdomainN LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2008. On November 11, 2008, the Center transmitted by email to UdomainN LLC a request for registrar verification in connection with the disputed domain name. On November 12, 2008, UdomainN LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on November 13, 2008. The Center verified that the Amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 18, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 8, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 12, 2008.
The Center appointed Mark Partridge as the sole panelist in this matter on January 5, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Panel issued a Procedural Order seeking additional evidence on January 27, 2009. Complainant provided additional evidence on January 28, 2009. Respondent did not respond to the Order. 4. Factual Background
Complainant owns a United States federal registration for the mark LENOX Registration Number 3,384,161 in connection with financial services. The date of application was January 31, 2007. The claimed first use date for LENOX was October 1, 1994.
The domain name was registered on September 26, 2007. 5. Parties' Contentions A. Complainant
Complainant states the Complaint is based on its trademark for LENOX FINANCIAL MORTGAGE CORP which was filed with the United States Patent and Trademark Office on March 30, 2004 for the following services “mortgage banking, mortgage brokerage and mortgage lending.”
Complainant avers the Respondent registered the domain name three and half years after the filing of the trademark application for LENOX FINANCIAL MORTGAGE CORP and 14 years after the first usage of LENOX FINANCIAL MORTGAGE CORP.
The disputed domain name is being used in bad faith by the Respondent because it is being used to mislead Internet users to its website in order to promote similar products offered by the Complainant. B. Respondent
Respondent did not reply to the Complaint. 6. Discussion and Findings
Paragraph 14 of the Rules provides in the event of default that the Panel “may draw such inferences therefrom as it considers appropriate.”
Paragraph 15(a) of the Rules instructs the Panel that “[a] Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules or principles of law that it deems applicable.”
Where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. Time Equipment Corp. v. Stage Presence, WIPO Case No. D2003-0850 (December 23, 2003); Express Scripts, Inc. v. Roy Duke, Apex Domains aka John Barry aka Domains for Sale and Churchill Club aka Shep Dog, WIPO Case No. D2003-0829 (February 26, 2004); Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques, WIPO Case No. D2000-0004 (February 16, 2000). A. Identical or Confusingly Similar
Complainant has provided evidence of rights in the mark LENOX based on U.S. registration of the mark for “Mortgage banking; Mortgage banking services, namely, origination, acquisition, servicing, securitization and brokerage of mortgage loans; Mortgage brokerage; Mortgage lending” (Registration No. 3,384,161). The registration was granted on February 19, 2008, and provides nationwide rights in the mark as of January 31, 2007, the filing date of the application for registration.
Complainant also owns a U.S. Registration for LENOX FINANCIAL MORTGAGE CORP, granted on May 31, 2005, establishing nationwide rights as of March 30, 2004, the filing date of that application (Registration No. 2,957,239). The registration includes a disclaimer of rights in “Financial Mortgage Corp” apart from the mark as a whole.
The disputed domain name was registered on September 26, 2007, and incorporates the LENOX mark in full, combined with the term “financial,” an apt descriptive term for Complainant's services. It is well-established that the addition of an apt descriptive term to another's mark does not avoid confusing similarity. The disputed domain name is also identical to the first two words of the second registration noted above. Therefore, the Panel finds that that the disputed domain name is confusingly similar to a mark in which Complainant has prior rights. B. Rights or Legitimate Interests
The Panel finds no evidence that Respondent ever had any rights or legitimate interests in the domain name in question. Respondent does not appear to have been known by the disputed name and is not using the domain name in connection with a bona fide offering of goods and services. After reviewing the website at the domain Panel finds Respondent's domain name is used to produce revenue based on the links provided on the webpage. Prior panels have decided that the use of confusingly similar domain names in connection with a “click-through” scheme does not serve to establish a bona fide offering of goods and services. (See The Evening S, Inc. v. Henry Chan, WIPO Case No. D2004-0305, and Lilly ICOS LLC v. Saban Mihailovic, WIPO Case No. D2005-0356). C. Registered and Used in Bad Faith
It appears that the disputed domain name is used for a website with links to mortgage businesses in competition with Complainant. The site fails to provide identification of Respondent as a legitimate business and largely appears to be a sham. Respondent has failed to present any evidence to show that it is engaged in a legitimate business or is known by the name “Lenox Financial”. Therefore, it appears more likely than not that Respondent has registered and used the disputed domain name in bad faith for the purpose of commercial gain based on confusion with Complainant and its use of LENOX and LENOX FINANCIAL MORTGAGE CORP for competing services. 7. Decision
For these reasons, the Panel grants Complainant's request for transfer of the domain name .
Mark V.B. Partridge
Sole Panelist
Dated: March 1, 2009
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