The Complainant is Caliber Home Loans, Inc., United States of America (“United States”), represented by Dykema Gossett PLLC, United States.
The Respondent is Domains By Proxy, LLC, United States / Larry Sralla, 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 November 29, 2021. On November 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 1, 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 the Complainant on December 2, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 3, 2021.
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 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2022.
The Center appointed Evan D. Brown as the sole panelist in this matter on January 12, 2022. 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.
On January 14, 2022, the Panel issued a Procedural Order requesting clarification concerning the ownership of United States Registration No. 5,984,588, for the mark CALIBER HOME LOANS (and Design). On January 24, 2022, the Complainant responded, explaining a purported fraudulent transfer that had occurred concerning this trademark registration and providing information concerning the relevant parties’ efforts to correct the records of the United States Patent and Trademark Office.
4. Factual BackgroundThe Complainant is in the business of providing mortgage banking services throughout the United States and in Puerto Rico and has been using the mark CALIBER HOME LOANS in connection with same since at least as early as July 2013. It owns a United States registration (No. 5,984,588) for the mark CALIBER HOME LOANS (and Design), which it registered on February 11, 2020.1 According to the WhoIs records, the disputed domain name was registered on November 8, 2021. As of the filing of this action, the disputed domain name was being passively held, not resolving to an active site.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsTo succeed, the Complainant 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 Complainant has 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 of these elements have been met in this case.
A. Identical or Confusingly SimilarThis element requires the Panel to consider two issues: first, whether the Complainant has rights in a relevant mark; and, second, whether the disputed domain name is identical or confusingly similar to that mark. This element under the Policy functions primarily as a standing requirement. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.
A 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 Complainant has demonstrated its rights in the CALIBER HOME LOANS mark by providing evidence of its trademark registration. The disputed domain name – being merely the Complainant’s mark with two sets of letters interposed – is confusingly similar to the Complainant’s mark. America Online, Inc. v. John Zuccarini,WIPO Case No. D2000-1495 (finding that “[…] the mere addition of a minor misspelling […] does not create a new or different mark in which the Respondent has rights. Instead it results in a domain name that is confusingly similar to Complainant’s mark”.)
The Complainant has met this first UDRP element.
B. Rights or Legitimate InterestsThe Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of production of demonstrating rights or legitimate interests shifts to the Respondent.
On this point, the Complainant asserts, among other things, that: (1) the Respondent is in no way affiliated with the Complainant, (b) at no time did the Respondent seek or obtain a license from the Complainant to use the CALIBER HOME LOANS mark, (c) the Respondent is not commonly known by the CALIBER HOME LOANS name or mark based on the information known to date, and (d) there is no evidence of use of the disputed domain name in connection with a bona fide offering of goods or services. The Complainant asserts that the disputed domain name was created to mislead consumers, and presumably direct traffic to the Respondent’s website in the future for commercial gain. Finally, the Complainant argues that the “passive holding” of the disputed domain name does not confer any rights or legitimate interests, citing to “Dr. Martens” International Trading GmbH and “Dr. Maertens” Marketing GmbH v.GoDaddy.com, Inc.,WIPO Case No. D2017-0246, wherein the UDRP panel held “[…] taking into account the overall circumstances of this case, the Respondent’s lack of use of the Domain Name is a strong indication of its lack of rights or legitimate interests in the Domain Name”.
The Panel finds that the Complainant has made the required prima facie showing. The Respondent has not presented evidence to overcome this prima facie showing. And nothing in the record otherwise tilts the balance in the Respondent’s favor.
Accordingly, the Panel finds that the Complainant has established this second element under the Policy.
C. Registered and Used in Bad FaithBecause the Complainant’s CALIBER HOME LOANS mark has been in use for a number of years, and is registered in the jurisdiction in which the Respondent is located (the United States), the Panel finds it likely that the Respondent was aware of the mark when it registered the disputed domain name. In the circumstances of this case, without the benefit of any explanation whatsoever from the Respondent as to a possible good faith use of the disputed domain name, such a showing is sufficient to establish bad faith registration of the disputed domain name.
The circumstances also demonstrate bad faith use of the disputed domain name in terms of the Policy. Where a disputed domain name is “so obviously connected with such a well-known name and products […] its very use by someone with no connection with the products suggests opportunistic bad faith. ” See, Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net,WIPO Case No. D2000-0226. Furthermore, from the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank page) would not prevent a finding of bad faith under the doctrine of passive holding (see section 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Respondent’s bad faith is also evidenced by its use of a privacy service to obscure its identity. Pet Plan Ltd v. Mohammed Nahhas,WIPO Case No. D2021-1964.
The Complainant has satisfied this third element.
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 31, 2022
1 The Panel is satisfied that (a) the information provided in response to the Procedural Order sufficiently explains an attempted fraudulent transfer of this trademark registration, (b) appropriate steps have been taken to remedy the situation, and that therefore (c) the Complainant is the true owner of this trademark registration.