Lowermymortgagebills.com

The timeline behind lowermymortgagebills.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION LowerMyBills, Inc. v. Richard DeBitetto Claim Number: FA0503000440255 PARTIES Complainant is LowerMyBills, Inc. (“Complainant”), represented by Sean F. Heneghan, 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is Richard DeBitetto (“Respondent”), represented by George L. DeBitetto, 428 SW Albatross Ct., Lees Summit, MO 64082. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <lowermymortgagebills.com>, registered with Dotster. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. The Panelist is The Honorable Patrick C. Guillot (Ret.). PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 14, 2005; the National Arbitration Forum received a hard copy of the Complaint on March 16, 2005. On March 15, 2005, Dotster confirmed by e-mail to the National Arbitration Forum that the domain name <lowermymortgagebills.com> is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster registration agreement and has thereby agreed to resolve domain name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On March 17, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 6, 2005 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@lowermymortgagebills.com by e-mail. On March 30, 2005, an Order Granting Extension of Time to Respond to Complaint Granted; Complainant Does Not Consent, setting a deadline of April 14, 2005 was transmitted to Respondent and Complainant via e-mail, post and fax. A timely Response was received and determined to be complete on April 12, 2005. A timely Additional Submission was received and determined to be complete on April 18, 2005. On April 22, 2005, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honorable Patrick C. Guillot (Ret.) as Panelist. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant 1. The domain name in dispute, <lowermymortgagebills.com>, is confusingly similar to a mark in which Complainant, LowerMyBills, Inc., has rights. The only difference between the domain name and mark is the addition of the word “mortgage”. 2. Respondent has no rights or legitimate interest in the domain name. 3. Respondent registered and used the disputed domain name in bad faith. B. Respondent 1. The domain name <lowermymortgagebills.com> is not confusingly similar to Complainant’s LOWERMYBILLS.COM mark. 2. Respondent has rights and a legitimate interest in the domain name. 3. The domain name has not been registered or used in bad faith. C. Complainant’s Additional Submissions 1. Complainant replied to Respondent’s Response stating that the Response was inadequate under the National Arbitration Forum’s rules [5(b)(vii)] because the Response did not include the required “complete and accurate” statement in conjunction with the signature of Respondent. 2. Additionally, Complainant complains that Respondent attempted to revise the mutual jurisdiction for this matter. 3. Finally, Complainant also states that low number of web users is not evidence of lack of confusion. D. Respondent’s Additional Submissions 1. Respondent replied with a Response to Complainant’s Reply, stating that the domain name is used for the purpose of providing leads for mortgage companies and not to aggregate lenders’ rates for consumer comparison. 2. Finally, Respondent states that the domain name best describes to the consumer what the Respondent does, namely, help people lower their mortgage bills only. FINDINGS Identical and/or Confusingly Similar Policy Paragraph 4(a)(i) A. Complainant has established its rights in its LOWERMYBILLS.COM mark. B. The Complainant further contends that <lowermymortgagebills.com> is confusingly similar to Complainant’s LOWERMYBILLS.COM mark, with the only difference being the addition of a generic or descriptive term “mortgage”. Complainant points out that Respondent offers services of comparison rates and plans for home equity and home refinance loans which are identical to Complainant’s services. Respondent argues that the <lowermymortgagebills.com> domain name is not confusingly similar because the domain name contains the generic or descriptive name “mortgage” and that such descriptive term makes the domain name sufficiently different to make it distinguishable because it specifies to the public that the website features mortgage services. Moreover, Respondent contends that Complainant has failed to provide evidence of Internet confusion, claiming only five consumers have been to the disputed domain name who were not expected. Complainant responds that it does not have to show “likelihood of confusion” as in trademark law nor must it show actual confusion. Under Paragraph 4(a)(i) of the Policy, the proper evaluation is made purely on a comparison between the trademark and the alphanumeric stream which makes up the domain name. With respect to identical or confusingly similar under Policy Paragraph 4(a)(i), the Panel finds for the Complainant. Rights and Legitimate Interests Policy Paragraph 4(a)(ii) Complainant asserts that Respondent is appropriating the Complainant’s mark to market and sell services which are identical to those offered by Complainant. The Panel finds that Respondent admits commercial benefit in the same or similar line of business. Complainant argues further that Respondent is not commonly known by the disputed domain name. Respondent replies that it has legitimate interests and rights in the domain name because it describes Respondent’s business. Finally, Respondent states it is known in the marketplace as “LowerMyMortgageBills.com”. The Panel finds that Respondent does not have rights or legitimate interest in the domain name. Registration and Use in Bad Faith Policy Paragraph 4(a)(iii) Complainant argues that Respondent registered and used the domain name in bad faith to intentionally attract Internet users to its website by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Complainant avers that Respondent registered the domain name for the purpose of bringing Internet users desiring to learn more about Complainant to Respondent’s website for the purpose of offering directly competing services and thus disrupting the business of Complainant. Evidence of the bad faith is the registration of a domain name confusingly similar to Complainant’s mark. Complainant further contends that the registration of Complainant’s mark with the United States Patent and Trademark Office confers constructive knowledge on anyone attempting to use the mark. Respondent argues that Complainant has failed to meet its burden of proving bad faith as it cannot point to particular facts and circumstances supporting its allegations. It further claims it did not have actual knowledge of the mark. Respondent further asserts that it limits its business to consumers who are looking for a better rate on their home mortgages while Complainant offers business services to consumers in a much broader scope. The Panel finds that the registration and use of the domain name was in bad faith. DISCUSSION Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar The Panel finds that Respondent’s addition of a generic term to Complainant’s mark to create a domain name, and Respondent’s use of that domain name to offer the same products and services as Complainant, is confusingly similar pursuant to Policy Paragraph 4(a)(i). See Arthur Guinness Son & Company (Dublin), Ltd. vs. HEALY/BOSTH, D2001-0026 (WIPO March 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with the generic word or term); see also Vivid Video, Inc. vs. Tennaro, FA, 126646 (Nat. Arb. Forum November 14, 2002) (finding that any distinctiveness resulting from a Respondent’s addition of a generic word to the Complainant’s mark in a domain name is less significant because the Respondent and Complainant operate in the same industry). It is admitted that both Complainant and Respondent operate in the industry of saving consumer’s money with respect to the payment of bills. Respondent claims that its use of the domain name is limited to the mortgage business, but there is evidence that Respondent has used the subject domain to direct Internet users to websites which market services similar to Complainant’s. The evidence shows that Complainant’s website, <lowermybills.com>, receives between four to five million unique views per month, and it is not a stretch of the imagination to find that Respondent would like to benefit from that mark with a confusingly similar domain name. Rights or Legitimate Interests The Panel finds that Respondent has not produced evidence justifying a legitimate interest in the domain name. See CAM Online, Inc. vs. Fu, d 2000-1374 (WIPO December 11, 2000) (“[I]t would be unconscionable to find a bona fide offering of services in a Respondent’s operation of website using a domain name which is confusingly similar to the Complainant’s mark and for the same business.”). Moreover, there is no or insufficient evidence to show that Respondent is commonly known by the disputed domain name. Respondent has admitted that it has received only a miniscule of visits to its website and, consequently, has admitted that it is not well-known and certainly not well-known by its domain name. Thus, it lacks rights and legitimate interests in the domain pursuant to Policy Paragraph 4(c)(iii). See RMO, Inc. vs. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy Paragraph 4(c)(ii) to require a showing that “one has been commonly known by the domain name prior to the registration of the domain name to prevail.”). Registration and Use in Bad Faith The evidence predominates that Respondent registered and used the domain name in bad faith to intentionally attract Internet users to its website by creating a likelihood of confusion with Complainant as to the source, sponsorship, affiliation or endorsement of its website. See Computerized SEC.SYS., Inc. vs. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that a Respondent’s use of the <safelock.com> domain name to offer goods competing with Complainant’s illustrates the Respondent’s bad faith registration and use of the domain name). Consequently, having found the domain name is confusingly similar to Complainant’s mark for purposes of Policy Paragraph 4(b)(iii) is evidence of bad faith registration and use. See Surface Prot. Indus., Inc. vs. Web Posters, D2000-1613 (WIPO February 5, 2001) (finding that, given the competitive relationship between the Complainant and the Respondent, the Respondent likely registered the contested domain name with the intent to disrupt the Complainant’s business and create user confusion). It is important to note that the registration of Complainant’s mark with the United States Patent and Trademark Office confers constructive knowledge on anyone attempting to use the mark; thus, the Panel does determine that the Respondent chose the disputed domain name based on the distinctive qualities of Complainant’s mark, and, thus, the registered domain name is in bad faith pursuant to Policy Paragraph 4(a)(iii). See Samsonite Corp. vs. Colony Holding, FA 94313 (Nat. Arb. Forum April 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of the registration). The Panel finds that Complainant is entitled to relief under ICANN Policy Paragraph 4(a)(i), 4(a)(ii), and 4(a)(iii). It finds that Respondent’s domain name is confusingly similar to Complainant’s mark; that Respondent has no rights or legitimate interests in the domain name; and that, with respect to the domain name, the Respondent’s registration and use thereof is in bad faith. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <lowermymortgagebills.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Patrick C. Guillot (ret.), Panelist Dated: May 6, 2005 NATIONAL ARBITRATION FORUM Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.