ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Rocket Mortgage, LLC v. Registration Private, Domains By Proxy, LLC / Michael Scheumack, Identity Intelligence Group (IDIQ) Case No. D2022-1840 1. The Parties The Complainant is Rocket Mortgage, LLC, United States of America ("United States"), represented by Perkins Coie, LLP, United States. The Respondent is Registration Private, Domains By Proxy, LLC / Michael Scheumack, Identity Intelligence Group (IDIQ), United States, represented by Rutan & Tucker, LLP, United States. 2. The Domain Name and Registrar The disputed domain name (the "Domain Name") is registered with GoDaddy.com, LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 20, 2022. On May 23, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 24, 2022, 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 May 27, 2022. In accordance with the Rules, paragraph 5, the due date for Response was June 16, 2022. On June 14, 2022, the Respondent sent an email communication to the Center requesting an extension of the Response due date. Pursuant to paragraph 5(b) of the Rules, the Response due date was extended to June 20, 2022. The Response was filed with the Center on June 21, 2022. page 2 The Center appointed W. Scott Blackmer as the sole panelist in this matter on June 23, 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. The Complainant submitted a supplemental filing on June 25, 2022, and the Respondent submitted a reply on July 1, 2022, as discussed further below. 4. Factual Background The Complainant is a mortgage lender organized as a limited liability company under the laws of the State of Michigan and headquartered in Detroit, Michigan, United States. According to public online information, formed in 1985 under the name Rock Financial and then known as Quicken Loans, LLC, the Complainant changed its name in 2021 to Rocket Mortgage, LLC. The Complainant's shares have been traded on the New York Stock Exchange since August 2020, with the symbol RKT. In 2015, the Complainant moved its services online and launched its online digital platform under the brand ROCKET MORTGAGE, pioneering online mortgage services. The Complainant became the largest residential mortgage lender in the United States in 2017 and remains one of the largest mortgage lenders overall in the country. The record shows that the Complainant and its various ROCKET-branded services have received media recognition and awards including J.D. Power's highest ranking for customer satisfaction for primary mortgage origination for ten consecutive years through 2020 and highest ranking for client satisfaction in mortgage services for eight consecutive years through 2021, Kiplinger's Personal Finance gold award in its 2021 list of "Best Firms for Customer Service: Mortgage Lenders", Money.com Best Online Lender of 2020, The Motley Fool 2022 recognition as "Best for" loan options and online application. Nearly all of the leading Internet search results for the words "rocket" and "credit" together refer to the Complainant. The Complainant operates a principal consumer website at "www.rocketmortgage.com" with a linked mobile application. The Complainant's website attracts seven million monthly visitors, and the mobile app has been downloaded over a million times. The Complainant's website and mobile app include certain credit-related functions relevant to mortgage lending, such as credit checks and credit information services. The Complainant claims to have used ROCKET as a mark since 1998, although the examples furnished in the record show that the Complainant tends to use the word in conjunction with other words or abbreviations such as "mortgage", "loan", "home", and "hq". In 2017, the Complainant applied to the United States Patent and Trademark Office ("USPTO"), Serial Number 87648967, to register ROCKET as a standard character mark, on the basis of an intent to use. USPTO issued a Notice of Allowance for this mark on March 8, 2022, giving the Complainant six months to file a statement of use or request an extension to do so. Thus, at the time of this Decision there is no evidence of a registered ROCKET mark or a sufficient record in this proceeding to show that the word ROCKET alone has acquired distinctiveness as a common law mark of the Complainant. Nevertheless, the Complainant holds a number of ROCKET-formative United States trademark registrations, including the following: MARK UNITED STATES REGISTRATION NUMBER REGISTRATION DATE ROCKETLOAN (standard characters) 2288697 October 26, 1999 ROCKET MORTGAGE (standard characters) 5013488 August 2, 2016 ROCKET HQ (standard characters) 5830389 August 6, 2019 page 3 ROCKET HQ (standard characters) 5830390 August 6, 2019 ROCKET HQ (standard characters) 5979883 February 4, 2020 ROCKET HOMES (words and design) 6216956 December 8, 2020 The Complainant's registered ROCKET HOMES device, without color, appears as follows: According to the Registrar's WhoIs database, the Domain Name was registered on October 25, 2020, in the name of a domain privacy service. After receiving notice of the Complaint in this proceeding, the Registrar identified the underlying registrant as the Respondent Michael Scheumack, listing his organization as "Identity Intelligence Group (IDIQ)", with a postal address in California, United States. Mr. Sheumack's LinkedIn page lists him as Chief Marketing Officer for IDIQ. The Response was filed in the name of "Identity Intelligence Group, LLC dba IDIQ", which is referred to as the "Respondent" hereafter. According to the online database operated by the Nevada Secretary of State, Identity Intelligence Group, LLC ("IDIQ") is a limited liability company established in 2010 under the laws of the State of Nevada, United States. The Respondent operates websites at "www.idiq.com" and "www.myscoreiq.com" in addition to the website associated with the Domain Name (the "Rocket Credit Scores website"). The Respondent's Rocket Credit Scores website is headed with a logo depicting a launching rocket ship and the words, "Rocket Credit Scores Powered by mySCOREIQr", as follows: The website offers consumers seven-day access to their credit scores for USD 1, followed by various monthly subscription plans for access to credit scores, credit reports, credit monitoring and alerts, identity theft insurance, and related services. Screenshots supplied with the Response show that the Respondent's Rocket Credit Scores website was associated with the Domain Name at least as early as February 2, 2021. The Complaint attaches evidence suggesting that the Respondent uses Google keyword advertising to promote search results for all three of its websites, the Rocket Credit Scores website and the websites at "www.idiq.com" and "www.myscoreiq.com", when Internet users search on the terms "rocket", "credit", and "score" together. The Complainant sent a cease-and-desist letter to the Respondent on February 1, 2022. The Respondent replied with a letter asserting its rights to use the Domain Name. The USPTO online database shows that IDIQ holds United States trademark registrations for IDIQ and MYSCOREIQ. On August 6, 2021, the Respondent filed applications with USPTO for two trademark registrations of its rocket-launching ROCKET CREDIT SCORES composite mark, with and without color, Serial Numbers 90869027 and 90868957, respectively, claiming first use in commerce on September 1, 2020. The USPTO issued a nonfinal office action refusing registration of those marks on February 22, 2022, partly on the ground of likely confusion with the Complainant's ROCKET HQ trademark, Registration Number 5830390. The USPTO examiner considered the word "rocket" to be an arbitrary term that is the dominant element in both the Complainant's and the Respondent's marks. The examiner compared the parties' page 4 description of services: the Respondent "providing consumer credit reports and credit scores maintained by others" and "[c]onsultation in the field of consumer credit", and the Complainant providing "credit consulting services" and "credit information services". The examiner concluded that these are "closely related" for purposes of assessing the likelihood of confusion. The examiner found that this similarity in services adds to the confusing similarity arising from the fact that the marks "look and sound similar and create the same commercial impression". The Respondent may respond to this nonfinal office action within six months. 5. Parties' Contentions A. Complainant The Complainant asserts that it has established "trademark rights in ROCKET" and that "rocket" is the distinctive portion of both the Complainant's ROCKET marks and the Domain Name. Thus, the Complainant urges a finding of confusing similarity. The Complainant contends that the Respondent has no permission to use the Complainant's ROCKET marks and no trademark of its own corresponding to the Domain Name. The Respondent is known by the names "Identity Intelligence Group, LLC dba IDIQ", not "Rocket Credit Scores". The Complainant points out that the earliest evidence of the Respondent's Rocket Credit Scores website dates from February 2021, which is long after the Complainant's claimed "common law and registered rights in the ROCKET Mark accrued". The Complainant argues that this website cannot be considered to represent a bona fide commercial offering as it used a confusingly similar Domain Name to offer "identical and competitive services". The Complainant argues for a finding of bad faith on several grounds: The Respondent must have been aware of the Complainant's ROCKET marks when registering the Domain Name. The marks are well established and very well known in connection with consumer lending and credit information in the United States. The Complainant "is one of the largest mortgage lenders in the United States, millions of consumers interact with Complainant and its websites each year for the purpose of securing mortgage and other lending and credit services, and Complainant has been the recipient of extensive recognition from third party publications and organizations". The Domain Name is confusingly similar to the Complainant's ROCKET family of marks, and the Respondent's website offers identical credit-related informational services offered by the Complainant, competing with the Complainant and disrupting its business. Credit information and credit applications are inherently part of the mortgage lending process and part of the Complainant's business. The USPTO examiner has recently confirmed that ROCKET CREDIT SCORES is confusingly similar to the Complainant's ROCKET marks. The Respondent's use of the Domain Name for competing services intentionally creates confusion as to source or affiliation and diverts Internet users for commercial gain. The Respondent compounds this effect by buying keyword ads for all three of its websites based on the search term "rocket". B. Respondent The Respondent argues against the first element of the Complaint as follows: "The disputed domain name is not confusingly similar to Complainant's asserted service marks. As explained below, Complainant has an extremely narrow trademark claim in ROCKET. Specifically, because of the common use of the word 'rocket' in the context of financial services, Complainant's mark is descriptive and, thus, weak. Furthermore, the parties' marks appear visually dissimilar. Also, the parties' services are distinct. As Complainant acknowledges, Respondent provides credit check, credit monitoring, and identity theft protection services under its mark and via the disputed domain, while page 5 Complainant largely provides mortgage and lending services under its ROCKET-formative marks. In fact, ROCKET HQ is the only one of Complainant's marks registered for use in connection with any creditrelated services (see U.S. Reg. No. 5,830,390), and even that mark is only registered and used in connection with informational services - not the credit check, credit monitoring, and identity theft protection services provided by Respondent. Finally, a search engine query for neither ROCKET nor ROCKET HQ pulls up the disputed domain name, substantiating the lack of similarity. Thus, the domain name is not confusingly similar to a service mark in which the Complainant has rights." The Respondent contends further that the ROCKET marks are weak because the word "rocket" is commonly used in connection with various goods and services, resulting in many "rocket"-formative marks held by multiple parties, reducing the likelihood of confusion of the Domain Name with the Complainant's marks. The Respondent claims legitimate interests in the Domain Name. "Respondent chose the disputed domain because it correlated with 'boosting' credit." The Respondent observes that it used the Domain Name in its business for at least a year before the UDRP dispute arose, as shown by a screen capture of the Respondent's website dated February 2, 2021, offering credit reporting and monitoring services to consumers for a monthly fee. The Respondent attaches a spreadsheet showing monthly enrollments in its service, with up to 42,000 monthly transactions prior to the filing of the UDRP Complaint. The Respondent denies bad faith motivation, contending that the parties are not direct competitors. The Respondent's focus is on credit reporting and credit monitoring services, while the Complainant provides credit information only incidental to its core business of mortgage lending. The Respondent denies any intent to disrupt the Complainant's business or engender confusion with the Complainant's marks and argues that there is no evidence of actual confusion among consumers. The Respondent requests a finding of Reverse Domain Name Hijacking against the Complainant, arguing that any reasonable investigation would have shown that the Respondent was conducting a bona fide, noncompeting business using the Domain Name before the dispute arose, with a Domain Name based on a word commonly used in a descriptive manner. According to the Respondent, the "Complainant's actions show that it engaged in a Plan B case after attempting to bully Respondent into assigning the domain name to Complainant via a baseless cease and desist letter". 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (i) the 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 domain name; and (iii) the domain name has been registered and is being used in bad faith. Under paragraph 15(a) of the Rules, "[a] Panel 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". 6.1 Preliminary Matter: Supplemental Filings The Complainant submitted a supplemental filing replying to the Respondent's factual arguments concerning the strength of the Complainant's marks, Internet search results on the Domain Name and the Complainant's trademarks, evidence that the Respondent is known by a name corresponding to the Domain Name and offers a bona fide commercial service, and rebuttal evidence concerning actual or likely confusion. The page 6 Complainant submits that it has furnished ample evidence and argumentation to apply for relief under the Policy, and accordingly there are not grounds for a finding of Reverse Domain Name Hijacking. The Respondent objects to the supplemental filing, arguing that there are no "exceptional circumstances" justifying such a filing, such as new evidence or unanticipated issues in the Response. The Respondent also counters with arguments concerning each of the points raised in the Complainant's supplemental filing. Neither the Rules nor the Supplemental Rules make provision for supplemental filings, except at the request of the panel (see Rules, paragraph 12). Paragraph 10 of the Rules enjoins the panel to conduct the proceeding "with due expedition". Therefore, UDRP panels are typically reluctant to countenance delay through additional rounds of pleading and normally accept supplemental filings only to consider material new evidence or provide a fair opportunity to respond to arguments that could not reasonably have been anticipated. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.6. The Complainant's filing does not include newly discovered material evidence, and the arguments raised in the Response are not ones that could not have been reasonably anticipated. The factual issues surrounding third-party trademarks, Internet search results, and the Respondent's service history have been briefed by both parties and are of limited relevance in any event. The Panel will take the supplemental filings into consideration solely for purposes of assessing the Respondent's request for a finding of Reverse Domain Name Hijacking. 6.2 Substantive Issues A. Identical or Confusingly Similar The first element of the UDRP "functions primarily as a standing requirement" and entails "a straightforward comparison between the complainant's trademark and the domain name". See WIPO Overview 3.0, section 1.7. As discussed above, the Complainant refers to a common law ROCKET service mark, but this is not supported by sufficient evidence on this record (see WIPO Overview 3.0, section 1.3 for the kinds of evidence necessary to establish acquired distinctiveness and rely on an unregistered mark for purposes of the first element of a UDRP complaint). The Panel notes that the Complainant's pending application to register ROCKET as a trademark was filed on the basis of intent to use and is still lacking a statement of use. However, the Complainant holds several ROCKET-formative United States trademark registrations in which the term "rocket" is the first and distinctive element, as noted by the USPTO examiner quoted above and as reflected in the fact that other terms (such as "mortgage" and "homes") are disclaimed in some of the Complainant's other trademark registrations. The Panel finds that the term "rocket" is the distinctive element in the Complainant's ROCKET-formative trademarks and is recognizable in the Domain Name, and that the Domain Name is confusingly similar also in "look and sound" to the Complainant's registered ROCKETformative trademarks. As usual, the top-level domain ".com" is disregarded as a standard registration requirement. See id. section 1.11.2.) The Panel concludes that the Complainant has established the first element of the Complaint. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which a respondent may establish rights or legitimate interests in a domain name, by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or page 7 (ii) that the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant has established trademark rights, a lack of permissive use, and the Respondent's use of a confusingly similar Domain Name for services that compete with some of the credit information and consulting services offered by the Complainant and that are closely related to the Complainant's mortgage lending business. Thus, the Complainant has made a prima facie case, and the burden of production shifts to the Respondent. The Respondent has applied for a relevant trademark registration, but this has been refused in the first instance in an ongoing application process. The Respondent argues instead that it has been offering a bona fide commercial service associated with the Domain Name and labelled "Rocket Credit Scores", beginning more than a year before this dispute arose. The Respondent contends that it legitimately uses the word "rocket" for its dictionary sense as a verb signifying "boosting" rapidly, rather than by reference to the Complainant. This prior commercial use of the Domain Name would satisfy the Policy, paragraph 4(c)(i), unless it appears more likely than not that the reason given is pretextual and that the Domain Name was chosen chiefly for its trademark rather than dictionary value, as the Complainant asserts. In that case, the service offering under this name cannot be characterized as "bona fide" for Policy purposes. This issue is interrelated with the assessment of bad faith and is addressed in the discussion below of the facts relevant to the third element of the Complaint. C. Registered and Used in Bad Faith The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that "shall be evidence of the registration and use of a domain name in bad faith", including the following to which the Complainant alludes (in which "you" refers to the registrant of the domain name): "(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 web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location." The Complainant relies on its national reputation, and the fact that the Respondent offers competing or similar services relating to consumer credit, to argue that the Respondent must have been aware of the Complainant's ROCKET brand when the Respondent registered the Domain Name in October 2020. Notably, the Respondent does not deny prior awareness of the Complainant and its ROCKET-formative marks but states that it did not "consider" the Complainant in deciding on the Domain Name, "because there are so many other companies that use 'rocket' in their names". This is not persuasive. The record shows that the Complainant's ROCKET-formative marks are very well known in relation to residential mortgage lending in the United States; the services are heavily advertised and used by millions of consumers. The ROCKET brand would be valuable in attracting consumers to a credit information website. Checking credit scores and obtaining related credit information are inherently part of the process of house-hunting and home buying and selling. The Complainant itself offers such services under its ROCKET HQ mark, as the USPTO examiner observed in refusing the Respondent's pending trademark application for its ROCKET CREDIT SCORES logo on the ground of confusing similarity. Moreover, the Respondent's Rocket Credit Scores page 8 logo, as shown above, is similar to the launching rocket device of the Complainant's registered ROCKET HOMES trademark (including in that the textual elements are italicized). Taken together, these facts strongly suggest that the Domain Name was not selected primarily for its dictionary sense of accelerating results but for a false implication of association with the Complainant, in an effort to misdirect Internet users to the Respondent's websites for commercial gain. The Panel finds, on this record, that the Respondent has registered and used the Domain Name in bad faith within the meaning of the Policy. The Panel concludes that the Complainant has established the third element of the Complaint, bad faith. The Panel also finds on these facts that the Respondent has not established a pre-existing "bona fide" commercial offering demonstrating rights or legitimate interests in the Domain Name for purposes of the second element of the Complaint and concludes that the Complainant prevails on the second element as well. D. Reverse Domain Name Hijacking Paragraph 15(e) of the UDRP Rules provides that, if "after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking ('RDNH') or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding". The Respondent has requested such a finding here. Reverse Domain Name Hijacking is defined under the UDRP Rules as "using the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name". Mere lack of success of a complaint is not sufficient to find Reverse Domain Name Hijacking. See WIPO Overview 3.0, section 4.16. A finding of RDNH is warranted, for example, when a panel finds that the complainant (especially one represented by counsel) should have recognized that it could not succeed on one of the three elements of the complaint under any fair interpretation of the available facts or brings a complaint based "on only the barest of allegations without any supporting evidence" (id.). The Panel in this instance has concluded that the Complaint is well grounded, and the Respondent's request for a finding of Reverse Domain Name Hijacking is therefore denied. 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 Domain Name, , be transferred to the Complainant. /W. Scott Blackmer/ W. Scott Blackmer Sole Panelist Date: July 7, 2022
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