Complainants are Lennar Pacific Properties Management, Inc., United States of America (“United States”), and Lennar Title, LLC, United States, represented by Slates Harwell LLP, United States.
Respondent is Contact Privacy Inc. Customer 1249304591, Canada / Shelly W Wagner, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2021. On February 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 8, 2021, 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 Complainants on February 9, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainants to submit an amendment to the Complaint. Complainants filed an amended Complaint on February 12, 2021. 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 Respondent of the Complaint, and the proceedings commenced on February 24, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 16, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 22, 2021. The Center appointed Frederick M. Abbott as the sole panelist in this matter on April 19, 2021. 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 Complainants Lennar Pacific Properties Management, Inc. (LPPM) and Lennar Title, LLC are affiliated legal entities, with LPPM owning various trademark registrations relevant to this proceeding, and Lennar Title the licensee of certain LPPM trademarks used in conducting its business. These parties are jointly referred to herein as “Complainant”, except as may be otherwise expressly stated. Complainant is the owner of registrations for the service mark LENNAR on the Principal Register of the United States Patent and Trademark Office (“USPTO”), including registration number 3,108,401, registration dated June 27, 2006, in international classes (“ICs”) 35, 36 and 37, covering real estate management consultation, financial services relating to the real estate sector, and real estate development planning services, as further specified, and; registration number 3,477,143, registration dated July 29, 2008, in ICs 36 and 37, covering real estate listing services and real estate management, and real estate development, as further specified. Complainant has applied for registration for the service mark LENNAR TITLE at the USPTO. Complainant is a major homebuilder operating in the United States under the LENNAR trademark. Complainant also offers title, escrow and real estate settlement services in connection with the sale of homes and is among the largest real estate settlement service providers in the United States. Complainant provides real estate transaction services, including title and settlement services, under the LENNAR TITLE trademark. Complainant operates a commercial website at “www.lennartitle.com”. Complainant and its customers exchange emails, including emails containing sensitive financial information, using Complainant’s “@lennartitle.com” email domain. According to the Registrar’s verification, Respondent is registrant of the disputed domain name. That verification indicates that the disputed domain name was registered to Respondent on February 2, 2021. There is no evidence on the record of this proceeding that Respondent has used the disputed domain name to direct Internet users to an active website. Complainant has provided evidence that Respondent has used the disputed domain name in email messages with actual usernames and titles of employees of Complainant to request information from users of Complainant’s real estate transaction closing services so as to fraudulently solicit the wire transfer of funds to Respondent. Complainant detected Respondent’s efforts and it does not appear that Respondent succeeded in perpetrating the fraudulent scheme regarding which Complainant provided evidence. The registration agreement between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, one of which is the Center, regarding allegations of abusive domain name registration and use (Policy, paragraph 4(a)). 5. Parties’ Contentions A. Complainant Complainant alleges that it owns rights in the trademarks LENNAR and LENNAR TITLE and that the disputed domain name is virtually identical and/or confusingly similar to those trademarks. Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name because: (1) Respondent has not used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services; (2) Respondent has not been commonly known by the disputed domain name, and has not acquired trademark rights in LENNAR or LENNAR TITLE, and; (3) Respondent has used the disputed domain name in a bad faith attempt to commit fraud on Complainant’s customers. Complainant argues that Respondent registered and is using the disputed domain name in bad faith because Respondent on the same date that it registered the disputed domain name attempted to carry out a scheme to defraud users of Complainant’s real estate transaction closing services using the disputed domain name within intentionally deceptive email addressing. Complainant requests the Panel to direct the Registrar to transfer the disputed domain name to Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceeding that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)). The Center formally notified the Complaint to Respondent at the email, fax, and physical addresses provided in its record of registration. Neither the fax nor courier delivery were successfully completed because the information provided in Respondent’s record of registration for the disputed domain name is inaccurate. The Center took those steps prescribed by the Policy and the Rules to provide notice to Respondent, and those steps are presumed to satisfy notice requirements. Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and Each of the aforesaid three elements must be proved by a complainant to warrant relief. This proceeding involves a regrettably familiar pattern: a domain name confusingly similar to a trademark is used as a domain identifier in connection with the transmission of emails intended to deceive a recipient(s) as to the true identity of the sender, thereby to take unfair financial or other advantage of the recipient(s). In addition to potential injury to the recipient(s), such deceptive behavior is likely to injure the commercial and/or reputational interest of the trademark owner. A. Identical or Confusingly Similar Complainant has provided evidence of rights in the trademark LENNAR, including by registration at the USPTO and use in commerce. See Factual Background. Respondent has not challenged Complainant’s assertion of rights. The Panel determines that Complainant has established rights in the trademark LENNAR. Complainant has provided evidence of unregistered or common law trademark rights in LENNAR TITLE, including evidence of a pending application for registration at the USPTO. Without prejudice to Complainant’s assertion of rights in LENNAR TITLE, the Panel need not make a determination regarding unregistered trademark rights for the purposes of rendering its decision in this proceeding. Respondent has registered the disputed domain name that fully incorporates Complainant’s distinctive LENNAR trademark, and adds the term “tltle”, substituting the letter “l” for the letter “i” after the first “t” so as to modify the ordinary spelling of the term “title”. Complainant’s LENNAR trademark is readily identifiable in the disputed domain name, and this suffices for a finding of confusing similarity between the trademark and disputed domain name within the meaning of the Policy. The added deceptively spelled term “tltle” does not diminish the basis for such finding. The Panel determines that Complainant has established rights in the trademark LENNAR, and that the disputed domain name is confusingly similar to that trademark. B. Rights or Legitimate Interests Complainant’s allegations to support Respondent’s lack of rights or legitimate interests in the disputed domain name are outlined above in section 5A, and the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name. Respondent has not replied to the Complaint, and has not attempted to rebut Complainant’s prima facie showing of lack of rights or legitimate interests. Respondent’s use of the disputed domain name in an email address incorporating a username identical to that of an employee of Complainant, and using that originating email address in an attempt to deceptively solicit the wire transfer of funds from a real estate closing customer of Complainant, does not establish rights or legitimate interests in the disputed domain name in favor of Respondent. Respondent’s use of the disputed domain name does not otherwise manifest rights or legitimate interests. The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In order to prevail under the Policy, Complainant must demonstrate that the disputed domain name “has been registered and is being used in bad faith” (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy states that “for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith”. These include that, “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location”. Respondent has used the disputed domain name intentionally for purposes of commercial gain to establish Internet user confusion regarding Complainant as the source of email communications intended by Respondent to deceive a user of Complainant’s real estate transaction services. The apparent intent of the deceptive email communications was to induce the recipient to make a wire transfer payment to Respondent under false pretenses. The substitution of the term “title” with the term “tltle” in the disputed domain name had no apparent purpose other than to deceive email recipients as to the identity of the email originator and/or recipient. Respondent was manifestly aware of Complainant’s rights in its trademark when it registered the disputed domain name and undertook its deceptive course of action. Such use of Complainant’s trademark in the disputed domain name constitutes bad faith within the meaning of the Policy. The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. 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, Frederick M. Abbott 1 The Panel notes that there are two Complainant entities in this proceeding. The Panel anticipates that Complainant may elect between those two entities as transferee of the disputed domain name, and that Complainant will have the opportunity to advise the Registrar regarding the elected entity.
(ii) 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.
Sole Panelist
Date: April 30, 2021
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