Complainant is Caliber Home Loans, Inc., United States of America (“United States”), represented by Dykema Gossett PLLC, United States.
Respondent is Sai Bhargavi Ginjupalli, 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 July 21, 2021. On July 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 22, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on August 2, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on August 3, 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 August 9, 2021. In accordance with the Rules, paragraph 5, the due date for a Response was August 29, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 1, 2021.
The Center appointed Bradley A. Slutsky as the sole panelist in this matter on September 15, 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 BackgroundComplainant owns trademark registrations in the United States and Puerto Rico, United States, for the marks CALIBER HOME LOANS and CALIBER HOME LOANS and Design. These trademark registrations claim a date of first use of July 2013. Respondent registered the disputed domain name on July 13, 2021. Screenshots of the website at the disputed domain name taken on July 20, 2021 show the website with links relating to loans and refinancing. The annexes to the Complaint also contain a PDF of an email exchange regarding a payoff letter and an account where payments should be sent. The sender of the final email in the exchange is from an email address at the disputed domain name.
5. Parties’ Contentions A. ComplainantComplainant asserts that it offers mortgage banking services throughout the United States and Puerto Rico, United States, and has been using the mark CALIBER HOME LOANS in connection with these services since at least as early as July 2013. Complainant asserts that it has over 200 physical locations, and also offers its services through the website at “www.caliberhomeloans.com”. Complainant has at least two trademark registrations in the United States and Puerto Rico, United States, for the marks CALIBER HOME LOANS and CALIBER HOME LOANS and Design. Complainant asserts that the disputed domain name is confusingly similar to Complainant’s CALIBER HOME LOANS mark, in that the disputed domain name consists of Complainant’s mark in its entirely with an “S” added at the end of CALIBER. Complainant asserts that this constitutes typosquatting, and asserts that Respondent also is using a spoofed and confusingly similar email address that impersonates one of Complainant’s employees (an authorized Title Officer). Complainant also asserts that Respondent has no rights or legitimate interests in the disputed domain name because Respondent is not affiliated with Complainant, is not licensed to use Complainant’s marks, is not commonly known by CALIBER HOME LOANS, and “is simply trading off of the goodwill created by Complainant in this mark to generate traffic to its website for commercial gain”. Complainant also asserts that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, and instead is misleading consumers and creating a “spoof email address for fraudulent purposes” to direct traffic to Respondent’s website for commercial gain. Complainant further asserts that “Respondent presumably receives some type of income from each click which directs traffic to third-party Internet retail sites competing with Complainant in the mortgage banking services field and transfer of information relating to these products and other goods/services”. Finally, Complainant asserts that Respondent registered and is using the disputed domain name in bad faith by “disrupting Complainant’s business by creating a likelihood of confusion with Complainant’s CALIBER HOME LOANS Mark as to the source, sponsorship, affiliation or endorsement of its website, and to generate traffic to Respondent’s website for commercial gain”, and that this confusion “is exacerbated by the fact Respondent not only uses Complainant’s CALIBER HOME LOANS Mark in the Disputed Domain Name, but also created a spoof email address associated with the domain in order to fraudulently contact Caliber employees and consumers, presumably to obtain sensitive personal data and financial information of Caliber consumers who are utilizing Caliber for mortgage services”.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsPursuant to paragraph 15(a) of the Rules, a panel in UDRP proceedings “shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Under paragraph 4(a) of the Policy, Complainant must prove the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(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.
A. Identical or Confusingly SimilarUnder paragraph 4(a)(i) of the Policy, Complainant must show that the disputed domain name is “identical or confusingly similar to a trademark or service mark in which Complainant has rights”.
Complainant’s trademark registrations demonstrate that Complainant has rights in the CALIBER HOME LOANS mark.
The disputed domain name consists of the CALIBER HOME LOANS mark, with an "S" at the end of the word CALIBER and the "S" removed from the end of the word "loans", and the “.com” generic Top Level Domain (“gTLD”) at the end. Generally, “[a] domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. WIPO Overview of Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9. The addition of the “.com” gTLD does not prevent a finding of confusing similarity. WIPO Overview 3.0, section 1.11.1 (“The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.”).
Accordingly, the Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights, and that paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate InterestsComplainant also must demonstrate that Respondent has “no rights or legitimate interests in respect of the domain name”, paragraph 4(a)(ii) of the Policy.
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [Respondent’s] rights or legitimate interests to the [disputed] domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to [Respondent] of the dispute, [Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [Respondent] (as an individual, business, or other organization) ha[s] been commonly known by the [disputed] domain name, even if [Respondent has] acquired no trademark or service mark rights; or
(iii) [Respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” Policy, paragraph 4(c).
There is no evidence that Respondent was making a bona fide use of the disputed domain name before receiving notice of this dispute, or that Respondent has been commonly known by the disputed domain name, or that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. Rather, Complainant asserts that Respondent is not affiliated with Complainant, is not licensed to use Complainant’s CALIBER HOME LOANS mark, is using the disputed domain name for a pay-per-click website, is using the disputed domain name for an email scam, and is engaging in typosquatting.
These allegations make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, which Respondent has not rebutted. See, e.g., LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138 (“It is clear that no license or authorization of any kind has been provided by Complainant to Respondents to use any of its trademarks or to apply for or use any domain name incorporating those marks. […] Thus, it is clear that no bona fide or legitimate use of the domain names could be claimed by Respondents.”); WIPO Overview 3.0, section 2.9 (“Under the second and third elements, panels will normally find that [typosquatting] signals an intention on the part of the respondent (typically corroborated by infringing website content) to confuse users seeking or expecting the complainant.”); WIPO Overview 3.0, section 2.9 (“panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users”). WIPO Overview 3.0, section 2.13.1 (“Panels have categorically held that the use of a domain name for illegal activity (e.g., … phishing, […] impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.”).
Accordingly, the record supports a conclusion that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad FaithComplainant also bears the burden of establishing that the “domain name has been registered and is being used in bad faith”. Policy, paragraph 4(a)(iii). As set forth in the Policy, paragraph 4(b):
“[T]he 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:
(i) circumstances indicating that [Respondent has] registered or [Respondent has] acquired the [disputed] domain name primarily for the purpose of selling, renting, or otherwise transferring the [disputed] domain name registration to [C]omplainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of [Respondent’s] documented out‑of‑pocket costs directly related to the [disputed] domain name; or
(ii) [Respondent has] registered the [disputed] 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 [Respondent has] engaged in a pattern of such conduct; or
(iii) [Respondent has] registered the [disputed] domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the [disputed] domain name, [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] website or location or of a product or service on [Respondent’s] website or location.”
“Given that the scenarios described in UDRP paragraph 4(b) are non-exclusive and merely illustrative, even where a complainant may not be able to demonstrate the literal or verbatim application of one of the above scenarios, evidence demonstrating that a respondent seeks to take unfair advantage of, abuse, or otherwise engage in behavior detrimental to Complainant’s trademark would also satisfy Complainant’s burden.” WIPO Overview 3.0, section 3.1.
Complainant asserts that Respondent registered and is using the disputed domain name in bad faith by “disrupting Complainant’s business by creating a likelihood of confusion with Complainant’s CALIBER HOME LOANS Mark as to the source, sponsorship, affiliation or endorsement of its website, and to generate traffic to Respondent’s website for commercial gain”, and that this confusion “is exacerbated by the fact Respondent not only uses Complainant’s CALIBER HOME LOANS Mark in the Disputed Domain Name, but also created a spoof email address associated with the domain in order to fraudulently contact Caliber employees and consumers, presumably to obtain sensitive personal data and financial information of Caliber consumers who are utilizing Caliber for mortgage services”.
The registration and use of a domain name that is confusingly similar to another party’s trademark for a pay-per-click website or for phishing is evidence of bad faith under paragraph 4(b)(iv) of the Policy. Caliber Home Loans, Inc. v. Domains By Proxy, LLC / Patrick Scott,WIPO Case No. D2018-0524 (“The record furnishes relatively little insight into the business of the elusive Respondent, but the ‘spoofing’ email suggests that the Respondent might have been competing with the Complainant for home refinancing business. It is questionable whether it can be inferred that the Respondent’s ‘primary’ motivation for registering and using the Domain Name was to ‘disrupt’ the business of a multi-billion-dollar competitor. What is clear is that the Respondent (a) was well aware of the Complainant’s mark, which the Respondent emulated in the email as well as in the Domain Name itself, and (b) traded on the Complainant’s reputation to attract Internet users to a portal that offered both competing and related financial services, presumably for commercial gain. This is very like the example cited in the Policy, paragraph 4(b)(iv), and certainly amounts to bad faith for Policy purposes, as does allowing the current use of the Domain Name for a PPC advertising portal.”); WIPO Overview 3.0, section 3.1.4 (“given that the use of a domain name for per se illegitimate activity such as the sale of counterfeit goods or phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith”); WIPO Overview 3.0, section 3.4 (“Panels have held that the use of a domain name for purposes other than to host a website may constitute bad faith. Such purposes include sending email, phishing, identity theft, or malware distribution. (In some such cases, the respondent may host a copycat version of the complainant’s website.) Many such cases involve the respondent’s use of the domain name to send deceptive emails, e.g., to obtain sensitive or confidential personal information from prospective job applicants, or to solicit payment of fraudulent invoices by the complainant’s actual or prospective customers.”). Respondent’s typosquatting also supports this conclusion. Intuit Inc. v. Privacy.co.com, Savvy Investments, LLC Privacy ID# 1130202,WIPO Case No. D2018-1999 (“Respondent’s ‘typosquatting’ and its use of the disputed domain name in connection with a website containing advertisements to a third party website offering services competitive with those of Complainant and to earn pay-per-click fees, demonstrates Respondent’s registration and use of the disputed domain name in bad faith pursuant to paragraph 4(b)(iv) of the Policy.”).
Accordingly, the Panel finds that the record supports a conclusion that the disputed domain name has been registered and is being used in bad faith, and that paragraph 4(a)(iii) of the Policy is satisfied.
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
Bradley A. Slutsky
Sole Panelist
Date: September 28, 2021