The Complainants are Lennar Pacific Properties Management, Inc., and Lennar Corporation, United States of America (“United States”), represented by Slates Harwell LLP, United States.
The Respondent is Maria Montoya, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 3, 2020. On June 4, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 2020, 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 Complainant on June 17, 2020, 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 amended Complaint on June 19, 2020. The Registrar confirmed that the language of the Registration Agreement for the disputed domain name is Russian. On June 17, 2020, the Center sent an email communication in both English and in Russian to the Parties regarding the language of the proceeding. On June 19, 2020, the Complainants requested the language of the proceeding to be English. The Respondent did not submit any comments on the language of the proceeding. The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 19, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 20, 2020. The Center appointed Assen Alexiev as the sole panelist in this matter on July 29, 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 Background The Complainants offer real estate management, brokerage, development, construction, and financial services. The Complainant Lennar Corporation (the “Second Complainant”) was established in 1954 and is one of the leading homebuilders in the United States, building and selling homes in 21 states in the United States. The official website of the Second Complainant is located at the domain name The Complainant Lennar Pacific Properties Management, Inc. (the “First Complainant”) is the owner of the following trademark registrations (the “LENNAR trademark”): - the United States trademark LENNAR with registration No. 3,108,401, registered on June 27, 2006 for services in International Classes 35, 36 and 37; and - the United States trademark LENNAR with registration No. 3,477,143, registered on July 29, 2008 for services in International Classes 36 and 37. The disputed domain name was registered on December 10, 2019. It resolves to a parking webpage of the Registrar. 5. Parties’ Contentions A. Complainant The Complainants point out that the registrant information for the disputed domain name is false, as the address and phone number are actually the address and phone number of the Complainants’ corporate headquarters in Miami, United States, and the Complainants have no current or former employees named Maria Montoya. According to the Complainants, the disputed domain name is identical to the LENNAR trademark, as it incorporates the trademark in its entirety. The Complainants contend that the Respondent does not have rights or legitimate interests with respect to the disputed domain name, as the Respondent is not using it in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair purpose, is not commonly known by the disputed domain name and has not acquired trademark rights in it. The Complainants submit that on February 10, 2020, the Second Complainant sent a cease and desist letter to the Respondent regarding the registration and use of the disputed domain name, to which the Respondent did not respond. According to the Complainants, this is further evidence of the lack of rights or legitimate interests of the Respondent in the disputed domain name. The Complainants contend that the disputed domain name has been registered and is being used in bad faith by the Respondent, primarily for the purpose of disrupting the Complainants’ business. According to the Complainants, the passive holding of the disputed domain name by the Respondent is in bad faith because the Complainants’ LENNAR trademark is widely known and enjoys a strong reputation and there is no conceivable good faith use to which the Respondent could put the disputed domain name that would not infringe this trademark. The Complainants point out that the false registrant information for the Respondent reflects further bad faith intent regarding the use of the disputed domain name, as it shows knowledge and awareness of the existence of the Complainants and their LENNAR trademark and an intent to use the disputed domain name for a bad faith purpose. B. Respondent The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings 6.1. Procedural issue – Language of the Proceeding According to the information provided by the Registrar, the language of the Registration Agreement for the disputed domain name is Russian. Under paragraph 11 of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The Complainants request that the language of the proceedings be English. They submit that the Respondent understands English, as the false address provided by it for the registration of the disputed domain name is in the United States, and state that they are not able to communicate in Russian, and that if they are required to submit all documents in Russian, the Complainants would incur substantial expenses for translation and the proceeding will be unduly delayed. The Center has sent all its communications to the Respondent in both English and Russian, and has invited the Respondent to express its views on the language of the proceeding. The Respondent has not submitted a Response or any objections to the Complainants’ request that the proceedings be held in English. The above satisfies the Panel that the Respondent can communicate in English, and that the Respondent would not be disadvantaged if the language of the proceeding is English, and is satisfied that using the English language in this proceeding would be fair and efficient. Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that the language of this administrative proceeding will be English. 6.2. Procedural issue – Consolidation of Complainants The Complainants submit a request for consolidation of their disputes with the Respondent. They submit that they have a common legal interest in the LENNAR trademark, as the First Complainant is its owner, while the Second Complainant is an affiliate and an authorized licensee of the LENNAR trademark and registrant of the domain name The Respondent has made no comments on this consolidation request. The Panel is satisfied that a consolidation of the two Complainants in a single proceeding against the Respondent in respect of the disputed domain name is justified and would be appropriate in the circumstances. As summarized in section 4.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), in assessing whether a complaint filed by multiple complainants may be brought against a single respondent, UDRP panels look at whether the complainants have a specific common grievance against the respondent or the respondent has engaged in a common conduct that has affected the complainants in a similar fashion, and whether it would be equitable and procedurally efficient to permit the consolidation. Prior UDRP panels have held that a “specific common grievance” is shown where the complainants have a common legal interest in the trademark rights on which the complaint is based or have been the target of common conduct by the respondent, which has clearly affected their individual legal interests in a similar fashion. These prerequisites for consolidation appear to be present in the case at hand. The Complainants have submitted evidence that the First Complainant holds registered trademark rights in the LENNAR trademark, submit that they are affiliates and they both use the LENNAR trademark for their business, and are represented by the same counsel in this proceeding. The conduct they allege that the Respondent has engaged into may affect, if present, each of them in a similar fashion. Neither of the Parties has made the Panel aware of any reason why a consolidation of the proceeding would not be equitable or procedurally efficient. In view of the above, the Panel decides to allow the consolidation of the two Complainants in a single proceeding against the Respondent in respect of the disputed domain name. 6.3. Substantive issues Pursuant to the Policy, paragraph 4(a), the Complainants must prove each of the following to justify the transfer of the disputed domain name: (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 Respondent has registered and is using the disputed domain name in bad faith. In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case. By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name …” The Respondent however did not submit a Response in this proceeding. A. Identical or Confusingly Similar The Complainants have provided evidence that the First Complainant is the owner of the LENNAR trademark, and submit that the Second Complainant is an affiliate of the First Complainant and is a licensee of the LENNAR trademark. As discussed in section 1.4.1 of the WIPO Overview 3.0, a trademark owner’s affiliate is considered to have rights in a trademark under the UDRP for purposes of standing to file a complaint. In view of this, the Panel accepts that the Complainants have rights in the LENNAR trademark for the purposes of the Policy and have standing to jointly file the Complaint. The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview 3.0. The Panel sees no reason not to follow the same approach here, so it will disregard the “.site” gTLD section of the disputed domain name. The relevant part of the disputed domain name for purposes of the first element is therefore the sequence “lennar”, which is identical to the LENNAR trademark. In view of the above, the Panel finds that the disputed domain name is identical to the LENNAR trademark in which the Complainants have rights. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview 3.0. The Complainants contend that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent is not commonly known by the disputed domain name and has not acquired trademark rights in it, and that it is not using the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair purpose. The Complainants also note that the Respondent has provided a false address and has not replied to the cease and desist letter of the Complainants. Thus, the Complainants have established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not submitted a Response. It has not disputed the statements of the Complainants in this proceeding and in the cease and desist letter that they sent to it, and has not alleged that it has rights or legitimate interests in the disputed domain name. The disputed domain name is identical to the LENNAR trademark and the Respondent has provided a false address for the purposes of its registration that coincides with the address of the Complainants’ corporate headquarters in Miami, United States. In view of the above and in the lack of any denial by the Respondent of it, the Panel is satisfied that it is more likely than not that the Respondent was well aware of the goodwill of the Complainants’ LENNAR trademark when it registered the disputed domain name, and that this registration was made in an attempt to exploit the goodwill of this trademark by an illegitimate use of the disputed domain name such as an impersonation of the Complainants. To the Panel, such conduct is not legitimate and does not give rise to rights and legitimate interests of the Respondent in the disputed domain name. Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely: “(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.” The disputed domain name is identical to the LENNAR trademark, and the Respondent has provided for its registration the address of the Complainants’ corporate headquarters. The disputed domain name has resolved to a parking webpage of the Registrar since its registration made less than one year ago. In view of this and in the lack of any evidence to the contrary, the Panel finds that it is more likely than not that the Respondent was well aware of the goodwill of the Complainants’ LENNAR trademark when it registered the disputed domain name, and that this registration was made targeting the same trademark. In view of the facts that the disputed domain name is identical to the LENNAR trademark and the Respondent has provided a false address that coincides with the address of the Complainants’ corporate headquarters without their consent, the Panel is not aware of any good faith use of the disputed domain name that would be legitimate. Rather, the use of the disputed domain name is likely to mislead Internet users and disrupt the Complainants’ business, and indicates an intention of the Respondent to exploit the goodwill of the LENNAR trademark through an illegitimate use of the disputed domain name such as an impersonation of the Complainants. Therefore, the Panel finds that the disputed domain name was registered and has been used in bad faith. 7. Decision For 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 Assen Alexiev
Sole Panelist
Date: August 6, 2020
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