The Complainant is Caliber Home Loans, Inc., United States of America (“USA”), represented by Dykema Gossett PLLC, USA.
The Respondent is Domain Administrator, Fundacion Privacy Services LTD, Panama.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2021. On August 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On August 24, 2021, the Registrar transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 September 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 27, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 28, 2021.
The Center appointed Michael D. Cover as the sole panelist in this matter on October 6, 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 BackgroundThe Complainant offers mortgage banking services throughout the USA and in Puerto Rico and has been using its trademark CALIBER HOME LOANS in respect of those services. The Complainant operates over 200 physical locations and through its website “www.caliberhomeloans.com”.
The Complainant owns registrations for its trademark CALIBER HOME LOANS (& design) in the USA and Puerto Rico, details of which are set out in the Complaint. They include USA trademark registration No 5984588 CALIBER HOME LOANS (& design) registered on February 11, 2020, with first use in commerce in the USA in July 2013, the application for registration having been filed in 2015.
The true identity of the Respondent is not available, because of the Respondent utilizing the Registrar’s privacy service. All that is known of the Respondent is that the name is Fundacion Privacy Services Ltd, with an alleged location in Panama.
The Disputed Domain Name was registered on August 10, 2021. The Disputed Domain Name resolves to a pay-per-click website, displaying links to third party websites offering mortgage lending and refinancing services. This is set out in the Complaint and also in Appendix 2 to the Complaint.
5. Parties’ Contentions A. ComplainantIdentical or Confusingly Similar
The Complainant submits that the Disputed Domain Name is confusingly similar to the Complainant’s CALIBER HOME LOANS trademark.
The Complainant states that it is the indisputable owner of the trademark CALIBER HOME LOANS in connection with mortgage banking and related services, in the light of the extensive use by the Complainant of that trademark and its USA and Puerto Rico registered trademarks for CALIBER HOME LOANS.
The Complainant submits that the Disputed Domain Name is confusingly similar to the Complainant’s trademark CALIBER HOME LOANS. The Complainant notes that the Disputed Domain Name consists of the Complainant’s trademark in its entirety, with a mere misspelling of “home” as “homeo”. The Complainant submits that the mere addition of a letter “o” in the Disputed Domain Name is a clear case of typosquatting. The Complainant notes that previous UDRP panels have held that minor alterations cannot prevent a finding of confusing similarity between the relevant trademark and a disputed domain name.
The Complainant submits that the Respondent’s use of the typosquatting variation of its trademark in the Disputed Domain Name is likely to cause confusion amongst the customers of the Complainant, as evidenced by the use of the nearly identical mark CALIBER HOMEO LOANS in the Disputed Domain Name, thus confusing consumers who are authentically searching for the Complainant’s website at “www.caliberhomeloans.com”.
Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in the Disputed Domain Name, as the Respondent is not in any way affiliated with the Complainant nor has the Complainant authorized or licensed the Respondent to use the Complainant’s CALIBER HOME LOANS trademark or to register any domain names incorporating the Complainant’s CALIBER HOME LOANS trademark or typographical misspellings thereof.
The Complainant continues that the Respondent has no rights or legitimate interest in the trademark CALIBER HOME LOANS or the Disputed Domain Name, because the Respondent is in no way affiliated with the Complainant. The Complainant states that it is the rightful owner of the CALIBER HOME LOANS trademark in the USA and Puerto Rico and that the Respondent is simply trading off the goodwill created by the Complainant in its mark to generate traffic to the Respondent’s website for commercial gain. The Complainant notes that the Respondent had not sought to obtain a license from the Complainant to use the CALBIER HOME LOANS trademark nor is the Respondent commonly known by the CALIBER HOME LOANS name or trademark, based on the information known to the date of the Complaint.
The Complainant continues that there is no demonstrable use by the Respondent of the Disputed Domain Name in connection with a bona fide offering of goods or services. The Complainant submits that the Disputed Domain Name was created to mislead consumers and direct traffic to the Respondent’s website for commercial gain. The Complainant submits that the nature of the Disputed Domain Name cannot constitute a legitimate or fair use as the Disputed Domain Name effectively impersonates or suggests sponsorship or affiliation with the Complainant, when there is none. The Complainant notes that previous Panels have found that, in the absence of any license or permission from a complainant to use well-known trademarks, no actual or contemplated bona fide or legitimate use of disputed domain names could reasonably be claimed.
The Complainant continues that there is no demonstrable use by the Respondent of the Disputed Domain Name in connection with bona fide offering of goods or services and that there is no evidence to indicate that the Respondent has any legitimate interests in the
The Complainant concludes that the Respondent has absolutely no rights or legitimate interests in the Disputed Domain Name and refers the Panel to United Parcel Service of America, Inc. v Gary Selesko, M&B Relocation and Referral, LLC,WIPO Case No. D2013-1555, where it was held that lack of rights or legitimate interests could be found where (1) a respondent is not a licensee of the complainant (2) the complainant’s rights in its related trademarks preceded the respondents registration of the disputed domain name and (3) the respondent is not commonly known by the disputed domain name.
Registered and Used in Bad Faith
The Complainant states that the Respondent has registered and is currently using the Disputed Domain Name in bad faith.
The Complainant notes the Policy sets forth four non-exclusive and non-exhaustive factors that the Panel may examine to determine that the Respondent has registered or used the Disputed Domain Name in bad faith. These are:
(i) The domain was registered primarily for the purpose of selling it to the complainant or a competitor for more than the documented out-of-pocket expenses related to the name; or
(ii) The domain was registered in order to prevent the mark owner from using it, provided that the registrant has engaged in a pattern of such registration; or
(iii) The domain was registered primarily to disrupt the business of a competitor; or
(iv) By using the domain name, the registrant has intentionally attempted to attract users for commercial gain by creating a likelihood of confusion as to source or affiliation.
The Complainant notes that a complainant need not show bad faith under all four of these factors but only need show bad faith as to one. The Complainant states that, in this case, factors (iii) and (iv) are the most relevant.
The Complainant submits that, in this instance, the Respondent registered the Disputed Domain Name for the primary purpose of disrupting the Complainant’s business by creating a likelihood of confusion with the Complainant’s CALIBER HOME LOANS trademark, as to the source, sponsorship, affiliation or endorsement of its website and to generate traffic to the Respondent’s website for commercial gain. The source confusion is exacerbated, says the Complainant, by the fact that not only does the Respondent uses the Complainant’s CALIBER HOME LOANS trademark in the Disputed Domain Name but also the Respondent could use the Disputed Domain Name to create spoof email addresses in order fraudulently contact the Complainant’s customers and employees and to obtain sensitive personal data and financial information of the Complainant’s customers.
The Complainant submits that there can be no question that the Respondent intended to trade on the goodwill and trademark rights established by the longstanding use of its CALIBER HOME LOANS trademark and its favourable reputation as a mortgage banking services throughout the USA and in Puerto Rico and cites in support the Decision of the panel in Graybar Services, Inc. v Graybar Elec, Grayberinc Lawrenge,WIPO Case No. D2009-1017, in which it was stated that the essence of the fraud was that the respondent had used the domain name to pretend that it was the complainant.
The Complainant concludes that, in sum, the Respondent’s activities constitute bad faith under the Policy and the Disputed Domain Name should be transferred to the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsThe Complainant must establish on the balance of probabilities that the Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name, and that the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Panel accepts that the Complainant has established rights in its trademark CALIBER HOME LOANS. The Complainant has registered rights, through trademark registrations in USA and Puerto Rico, the earliest of which was filed in 2015. That is sufficient for the purposes of the Policy.
The Panel also accepts that the Disputed Domain Name is confusingly similar to the Complainant’s CALIBER HOME LOANS trademark, in which it has established rights. The Disputed Domain Name incorporates the Complainant’s CALIBER HOME LOANS trademark in its entirety and, in assessing confusing similarity, it is well established that the incorporation of an additional element, such as the letter “o”, does not avoid a finding of confusing similarity. In fact, 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. Finally, under this heading, it is well established that the incorporation of a generic Top Level Domain (gTLD), such as “.com”, does not avoid a finding of confusing similarity.
The Panel therefore decides that the Disputed Domain Name is confusingly similar to the Complainant’s trademark CALIBER HOME LOANS, in which the Complainant has rights, and the provisions of the Policy, paragraph 4(a)(i) have been met.
B. Rights or Legitimate InterestsThe Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Panel accepts the submissions of the Complainant, which, of course, has not been challenged by the Respondent, that the Respondent has not been licensed by the Complainant to use its CALIBER HOME LOANS trademark and that that the Respondent has not been commonly known by the Disputed Domain Name.
The misspelling of the Disputed Domain Name with the addition of the letter “o” points towards typosquatting. Furthermore, such use as has taken place of the Disputed Domain Name, involving resolving to the pay-per-click website already mentioned, is not use in connection with a bona fide offering of goods or services, as such links compete with or capitalize on the reputation and goodwill of the Complainant’s trademark or otherwise mislead Internet users.
In addition, the Panel finds that the Respondent, before any notice of the dispute, has made no demonstrable preparations to use the Disputed Domain Name (or a name corresponding to the Dispute Domain Name) in connection with a bona fide offering of goods or services, that the Respondent has not been commonly-known by the Disputed Domain Name, and that the Respondent has made no legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the Respondent’s CALIBER HOME LOANS trademarks.
The Panel accordingly finds that the provisions of the Policy, paragraph 4(a)(ii) have been met.
C. Registered and Used in Bad FaithThe Panel accepts that the Disputed Domain Name has been registered and is being used in bad faith.
The Panel infers from the material before it that the Respondent was aware or should have been aware of the Complainant’s trademark CALIBER HOME LOANS, which was both used and registered significantly before the registration of the Disputed Domain Name in August 2021. Moreover, panels have consistnely found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The Complainant has not licensed or authorized the Respondent use its CALIBER HOME LOANS trademark.
The Panel finds that the Respondent has registered the Disputed Domain Name for the purpose of attempting to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s CALIBER HOME LOANS trademark as to source, or affiliation. This is supported by the fact that the Disputed Domain Name is being used to resolve to a pay-per-click website displaying links to third party websites offering mortgage lending and refinancing services of a similar nature to those offered by the Complainant.
The Panel accordingly finds that the provisions of the Policy, paragraph 4(a)(iii) have been met.
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,
Michael D. Cover
Sole Panelist
Date: October 13, 2021