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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

New Century Mortgage Corporation v. Dakasi

Case No. D2006-1630

1. The Parties

The Complainant is New Century Mortgage Corporation, of Irvine, California, United States of America, represented by Sughrue Mion, PLLC United States of America.

The Respondent is Dakasi, of Kyoto, Japan.

2. The Domain Name and Registrar

The disputed domain name <wwwhome123.com> is registered with Cydentity, Inc., d/b/a Cypack.com.

3. Procedural History

The Complainant filed its Complaint with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2006. On December 22, 2006, the Center transmitted a request for registrar verification in connection with the domain name at issue by email to Cydentity, Inc., d/b/a Cypack.com. On December 23, 2006, Cydentity, Inc., d/b/a Cypack.com transmitted by email to the Center its response verifying that the domain name in dispute was registered with it and that the Respondent was listed as the registrant, and also providing the details for the administrative, billing, and technical contact. Based on the information that the language of the registration agreement is Korean, the Center sent a notification to Complainant on January 15, 2007 regarding the filing of an English Complaint and its administrative deficiency, and requested Complainant to submit either (a) an agreement between the Parties to proceed in English, or (b) to submit a request for English to be the language of the administrative proceeding. On January 22, 2007, the Complainant submitted to the Center its request to proceed the proceeding in English, and on that same day, the Center taking into account the Complainant’s submissions as to why it considered that the language of proceeding should be English, notified the Parties that the Center will accept the Complaint in English, accept a Response in either Korean or English and that it will be the Panel’s discretion to decide. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the administrative proceeding commenced on January 22, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 11, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 12, 2007.

The Center appointed Boh Young Hwang as the sole panelist in this matter on February 16, 2007. 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

The Complainant is a mortgage lender and has been in business since 1995, and it acquired the trademark registration on the mark HOME 1-2-3 (Regis. No. 2,250,525) registered in June 1, 1999 and other later registered word and design marks containing the words “Home” and “123”. The predecessor in interest of the Complainant had offered mortgages under the HOME 123 mark at least as early as 1998, and currently, the Complainant offers all retail mortgage services under the HOME 123 mark. The Complainant has a number of offices around the U.S. where consumers can apply for mortgage loans, operating under the name HOME 123. The Complainant also operates its main website at the URL “http://www.home123.com”, which may also be accessed through the URL “http://www/home123.net”.

The domain name in dispute was registered by the Respondent on December 3, 2004, but the disputed domain name is not in use by the Respondent. The disputed domain name is used to provide links to various real estate providers, including the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant contends that based on its long use of the HOME 123 mark and its extensive promotion of the mark, the Complainant has ensured that HOME 123 has broad exposure in the home loan marketplace and has become a well-known mark.

The Complainant contends that the domain name in dispute is confusingly similar to the Complainant’s HOME 123 service mark. The main part of the domain name in dispute is “home123”, and the other “www” part of the Respondent’s domain name is merely the acronym for “world wide web” and an extremely common prefix when succeeded by a period to a domain name in a URL for a web page on the Internet, without any distinguishing capacity.

The Complainant contends that the Respondent has no rights or legitimate interests in the domain name in dispute. The domain name in dispute is not used to provide any bona fide goods or services, but is merely used to redirect visitors to mortgage lenders, including the Complainant. The Respondent has passively held (i.e., “parked”) the domain name in dispute.

The Complainant further contends that the registration and parking of the domain name in dispute evidences the Respondent’s bad faith in its registration. Given HOME 123’s broad exposure and notoriety in the mortgage loan business, and given that the domain name in dispute redirects visitors to websites of mortgage lenders, including the Complainant’s, the Respondent must have been aware of the existence of the HOME 123 trademark, and must have known that given the trademark, that there would be no apparent circumstances in which the Respondent could legitimately use the domain name in dispute.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement, unless the Panel decides otherwise. The spirit of paragraph 11 is to ensure fairness in the selection of language by giving full consideration to the parties’ level of comfort with each language, the expenses likely to be incurred, the possibility of a delay in the proceeding if translations were required and other factors.

In this case, the Complaint was filed in English. While the registration agreement was unquestionably in the Korean language, the Complainant is located in the United States of America, and the Respondent is located in Japan. As such, since the Respondent is in all likelihood unable to communicate in Korean, and the proceeding would be inevitably delayed if the Complainant had to submit English/Korean documents, and the Respondent Japanese/Korean documents, the Panel is prepared in the present circumstances to proceed in English.

Therefore, in consideration of the above, and taking into account that the Respondent has not participated in this proceeding even though given an appropriate notice, the Panel hereby decides under paragraph 11 of the Rules that English shall be the language of the Proceeding.

To obtain a cancellation or transfer of the domain name in dispute, the Complainant must prove each element of paragraph 4(a) of the Policy, namely:

(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) the Respondent has no rights to or legitimate interest in the domain name in dispute; and

(iii) the domain name in dispute has been registered and used in bad faith.

A. Identical or Confusingly Similar

The Complainant’s predecessor had conducted mortgage lending business using the HOME 123 name since 1995. The Complainant owns the trademark HOME 1-2-3 (Regis. No. 2,250,525) that was registered in June 1, 1999 and other registered word and design marks containing “Home” and “123”. The Complainant also uses a domain name containing its trademark (<home123.com>). The Complainant’s trademark HOME 123 is identical or confusingly similar to the word part “home123” of the domain name in dispute, and the non-distinguishing “www” that is not followed by a period cannot mask this identical nature.

The Respondent has failed to submit its response, and therefore has not offered any reasons as to why the domain name in dispute should not be considered identical or confusingly similar with the Complainant’s marks and domain name.

Therefore, the Panel finds that the first element of the Policy has been met.

B. Rights or Legitimate Interests

As the Complainant has adduced sufficient material to make out a prima facie case under paragraph 4(c) of the Policy, the evidential burden shifts to the Respondent to rebut the case. The Respondent has failed to submit any evidence that would show its rights or legitimate interests in registering and using the domain name in dispute.

Accordingly, and also having in mind the usage of the domain name in disputed (explained below), the Panel finds that the second element of the Policy has been met.

C. Registered and Used in Bad Faith

The Complainant has submitted evidence as to its prior use and registration of the service mark HOME 123 and the trademark HOME 1-2-3 to the registration of the disputed domain name. Based on the Complainant’s registration and use of the domain name <home123.com> prior to the Respondent’s registration of the domain name in dispute, the Complainant has alleged that the Respondent had knowledge of HOME 123’s broad exposure and notoriety and has registered and used the domain name passively in bad faith. The Respondent has failed to rebut the Complainant’s contention.

Further, upon the actual use of the domain name in dispute for parking purpose displaying links to the Complainant’s competitors, it is indisputable that the domain name in dispute has no purpose other than to redirect visitors to other mortgage lenders, and that there does not seem to be any active business conducted through the domain name in dispute by the Respondent except for such redirecting purpose.

Given the above, and without a response from the Respondent, the Panel agrees with the Complainant’s assertion that the registration and the use of the domain name in dispute is in bad faith. The Panel is satisfied on the available evidence that the Respondent is in all likelihood intentionally attempting to attract, for commercial gain, Internet users to the Respondent’s website using the domain name in dispute by creating a likelihood of confusion with the Complainant's mark.

Accordingly, the Panel finds that the third element of the Policy has been met.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <wwwhome123.com> be transferred to the Complainant.

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Boh Young Hwang
Sole Panelist

Dated: March 2, 2007