The Complainants are Lennar Pacific Properties Management, Inc. (“LPPM”) and CalAtlantic Title, Inc. (“CALATL”), United States of America (“United States”), represented by Slates Harwell LLP, United States.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Erik Landry, United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2019. On December 11, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 11, 2019, the Registrar 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. The Center sent an email communication to the Complainants on December 12, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amendment to the Complaint on December 13, 2019.
The Center verified that the Complaint, together with the amendment to the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 5, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2020.
The Center appointed Evan D. Brown as the sole panelist in this matter on January 15, 2020. 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.
4. Factual BackgroundThe Complainants offer real estate, title, escrow, and closing services in several states in the United States. The Complainant LPPM owns trademark rights in various iterations of the mark CALATLANTIC, including the word mark that is the subject of United States Reg. No. 5,486,887, issued on June 5, 2018. The Complainant CALATL is a company related to the Complainant LPPM, from which it has licensed rights to use the CALATLANTIC marks. The Complainant CALATL operates the website at “calatl.com”, which provides information about services offered under the CALATLANTIC marks, and through which customers regularly provide sensitive and confidential financial information. The Respondent registered the disputed domain name on November 26, 2019. It has used the disputed domain name for, among other things, the sending of email to trick consumers and lending institutions into wiring money to a bogus account.
5. Parties’ Contentions A. ComplainantTo succeed, the Complainants must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel finds that all three elements have been met in this case.
B. RespondentThe Respondent did not reply to the Complainants’ contentions.
6. Discussion and Findings A. Consolidation of Multiple ComplainantsUDRP panels have articulated principles governing the question of whether a complaint filed by multiple complainants may be brought against one or more respondents. These criteria encompass situations in which: (i) the complainants either have a specific common grievance against the respondent, or the respondent has engaged in common conduct that has affected the complainants’ individual rights in a similar fashion; and (ii) it would be equitable and procedurally efficient to permit the consolidation. The burden of showing that consolidation is proper falls on the Complainants.
The Complainants have provided sufficient evidence to support consolidating them. They share a legal interest and grievance. Specifically, the Complainant LPPM is the owner of federal trademark registrations for various iterations of the CALATLANTIC mark. CALATL is a related company and authorized licensee of the CALATLANTIC marks, and CALATL’s parent company Lennar Corporation (“Lennar”) also owns, and CALATL operates, the website found at “www.catatl.com” related to services offered under the CALATLANTIC marks. As such, both of the Complainants have a common legal interest in a relevant right or rights that are affected by the Respondent’s conduct regarding registration and use of the disputed domain name, and both of the Complainants are the target of common conduct by the Respondent that has affected their individual legal interests. Further, it is procedurally efficient to consolidate them.
Accordingly, the Panel will consolidate the Complainants.
B. Identical or Confusingly SimilarA registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See, Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,
WIPO Case No. D2014-0657. The Complainants have demonstrated their rights because they have shown ownership and other rights in the registered CALATLANTIC marks as noted above.
The disputed domain name does not incorporate the Complainants’ exact mark, CALATLANTIC, but “calatl” is the dominant portion of the trademark, “catatl” is a typosquatting version of it, and “calatl” is also the abbreviated name of the Complainant, CalAtlantic Title Inc. Especially in this context – the Respondent used the disputed domain name specifically to confuse email users by sending email messages apparently while impersonating the Complainants. This evidence of intent to confuse on the part of the Respondent reinforces the conclusion that the disputed domain name is confusingly similar to the Complainants’ trademark. Bayer Healthcare LLC v. Admin, Domain,
WIPO Case No. D2016-2342. See also section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition.
In view of the above and the broader case context, this Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Complainants have established this first element under the policy.
C. Rights or Legitimate InterestsThe Panel evaluates this element of the Policy by first looking to see whether the Complainants have made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainants make that showing, the burden of demonstrating rights or legitimate interests shifts to the Respondent.
The Complainants have made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. By failing to respond to the Complaint, the Respondent did not overcome its burden of demonstrating rights or legitimate interests, and no other facts in the record tip the balance in the Respondent’s favor.
Paragraph 4(c) of the Policy instructs respondents on a number of ways they could demonstrate rights or legitimate interests (“you” and “your” in the following refers to the particular respondent):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
In this case, the principal indicator of the lack of rights or legitimate interests comes from the alleged fraudulent nature of the Respondent’s use of the disputed domain name to generate email. See, Regeneron Pharmaceuticals, Inc. v. Nikki Dockum, Tred,
WIPO Case No. D2018-0155 (the principal indicator of the lack of rights or legitimate interests was the alleged fraudulent nature of the respondent’s use of the disputed domain name to generate spear phishing email); Syngenta Participations AG v. Guillaume Texier, Gobain Ltd,
WIPO Case No. D2017-1147 (registrant cannot acquire rights or legitimate interests by the use of a domain name as an email address from which to send phishing emails). Accordingly, the Respondent does not have any rights or legitimate interests in regard to the disputed domain name.
The Policy requires the Complainants to establish that the disputed domain name was registered and is being used in bad faith. Based on the available record, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. The use of the disputed domain name to impersonate the Complainants is a clear indication that the Respondent had the Complainants in mind when it registered the disputed domain name. Further, using the disputed domain name to send fraudulent email is a strong example of bad faith under the Policy.
Accordingly, the Complainants have satisfied this third element of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name
Evan D. Brown
Sole Panelist
Date: January 29, 2020