Ocwenmdlssettlement.com

The timeline behind ocwenmdlssettlement.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 Ocwen Financial Corporation v. ICS INC. Claim Number: FA1212001474401 PARTIES Complainant is Ocwen Financial Corporation (“Complainant”), represented by Amy E. Salomon of Arent Fox LLP, Washington, D.C., USA. Respondent is ICS INC. (“Respondent”), Cayman Islands. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <ocwenmdlssettlement.com>, registered with TUCOWS, INC. PANEL The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding. Terry F. Peppard as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electron-ically on December 5, 2012; the National Arbitration Forum received payment on December 5, 2012. On December 5, 2012, TUCOWS, INC. confirmed by e-mail to the National Arbi-tration Forum that the <ocwenmdlssettlement.com> domain name is registered with TUCOWS, INC. and that Respondent is the current registrant of the name. TUCOWS, INC. has verified that Respondent is bound by the TUCOWS, INC. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On December 6, 2012, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of December 26, 2012 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, adminis-trative, and billing contacts, and to postmaster@ocwenmdlssettlement.com. Also on December 6, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respond-ent’s registration as technical, administrative and billing contacts. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On January 8, 2013, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Not-ices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant Complainant owns the OCWEN mark, and Complainant uses the mark to market mortgages, real estate loans and related services. Complainant holds a registration of the OCWEN service mark, on file with the United States Patent and Trademark Office (“USPTO”), as Reg. No. 2,330,061, registered March 14, 2000. Complainant has also common law rights in the OCWEN mark in that Complain-ant is one of the largest providers of business process outsourcing services for the financial services industry in the United States, and Complainant has contin-uously used the OCWEN mark in its business since at least December18, 1986. Respondent registered the disputed domain name on May 24, 2012. Respondent’s <ocwenmdlssettlement.com> domain name is confusingly similar to Complainant’s OCWEN mark. Respondent has not been commonly known by the disputed domain name. Respondent owns no trademark embodying the domain name, and is not licens-ed or otherwise authorized by Complainant to use the OCWEN mark. Respondent is not making a legitimate noncommercial or fair use of, nor a bona fide offering of goods or services in connection with, the disputed domain name. Respondent is merely using the disputed domain name to redirect unsuspecting consumers to a third-party search engine. Respondent has neither any rights to nor any legitimate interests in the contested domain name. Respondent is offering the domain name for sale via an online auction service. Respondent’s efforts to sell the domain name constitute bad faith. Respondent is preventing Complainant from reflecting its mark in a correspond-ing domain name. Respondent has engaged in a similar pattern of cybersquatting behavior as evidenced by multiple adverse UDRP decisions. Respondent employment of the domain name confuses Internet users into be-lieving that Complainant sponsors or is affiliated with Respondent. Respondent does this in order to profit via the receipt of click-through fees tracing to each occasion on which an Internet user click on a hyperlink on the website re-solving from the disputed domain name. Respondent knew of Complainant’s rights in the OCWEN mark when it registered the contested domain name. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS (1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and (2) Respondent has no rights to or legitimate interests in respect of the domain name; and (3) the same domain name was registered and is being used by Respondent in bad faith. DISCUSSION Paragraph 15(a) of 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 Complainant must prove each of the following three elements to obtain an order that a domain name should be can-celled or transferred: i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and ii. 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. In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representa-tions pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.” Identical and/or Confusingly Similar Complainant has rights in its OCWEN service mark for the purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the United States Patent & Trademark Office (“USPTO”). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a UDRP complainant’s rights in a mark under Policy ¶ 4(a)(i)). This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here the Cayman Islands). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a UDRP complainant can demon-strate rights in a mark in some jurisdiction). Turning to the central question arising under Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <ocwenmdlssettlement.com> domain name is confusingly similar to Complainant’s OCWEN mark. The domain name incorporates the entire OCWEN mark, and merely adds the cluster of letters “mdls,” which is capable of multiple meanings, and the generic term “settlement,” as well as the generic top-level domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not avoid a finding of confusing sim-ilarity under the standards of the Policy. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to a complainant’s AIG mark failed to differentiate the name from the mark under Policy ¶ 4(a)(i). See also Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the domain name <aolrj.com> was confusingly similar to a complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”). In addition, see Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Rights or Legitimate Interests Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a UDRP complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006): Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names. Complainant has made a sufficient prima facie showing under this head of the Policy. Therefore, and because Respondent has failed to respond to the alle-gations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in the contested domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both holding that, where a respondent fails to respond to a UDRP Com-plaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name. Nonetheless, we will ex-amine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respond-ent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy. We begin by noting that Complainant alleges, and Respondent does not deny, that Respondent has not been commonly known by the disputed domain name <ocwenmdlssettlement.com>, and that Respondent owns no mark embodying the domain name and is not licensed or authorized by Complainant to use the OCWEN mark. Moreover, the pertinent WHOIS information identifies the regis-trant of the domain name only as “ICS, INC.,” which does not resemble the do-main name. On this record, we conclude that Respondent has not been com-monly known by the <ocwenmdlssettlement.com> domain name so as to have demonstrated that it has rights to or legitimate in that domain name within the contemplation of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a re-spondent was not commonly known by the <coppertown.com> domain name, and so had failed to show that it had rights to or legitimate interests in that domain name under Policy ¶ 4(c)(ii), where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by the disputed domain name). We next observe that Complainant asserts, without objection from Respondent, that Respondent is making neither a legitimate noncommercial or fair use nor a bona fide offering of goods or services by means of, the contested domain name, in that Respondent employs the domain name to redirect unsuspecting consum-ers to a website featuring a search engine displaying links to third-party websites offering services competing with the business of Complainant and that Respond-ent attempts to profit from this use of the domain name. This is neither a bona fide use under Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click web-site resolving from a domain name that is confusingly similar to the mark of an-other is not a bona fide offering of goods or services or a legitimate noncommer-cial or fair use, regardless of whether the links resolve to competing or unrelated websites or whether a respondent profits from click-through fees). Further, Complainant claims, again without objection from Respondent, that Re-spondent seeks to auction off the domain name. In the circumstances here presented, this too stands as evidence that Respondent’s employment of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007): UDRP precedent is clear that auctioning domains does not consti-tute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains. The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii). Registration and Use in Bad Faith We are persuaded from the evidence that Respondent’s use of the disputed domain name, as alleged in the Complaint, tends to confuse Internet users into believing that Complainant sponsors, or is otherwise affiliated with, the domain name, and that Respondent attempts to profit from its deceptive employment of the domain name. This stands as proof of bad faith registration and use of the domain name as described in Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where a respondent’s domain name resolved to a website that offered links to third-party websites selling services similar to those of a UDRP complainant). We are likewise convinced from the record that Respondent has engaged in a pattern of similar cybersquatting behavior as evidenced by multiple adverse UDRP decisions. This is evidence of bad faith registration and use of the domain name in the instant case. See, for example, Ocwen Financial Corp. v. ICS INC., FA1439294 (Nat. Arb. Forum, May 16, 2012); Questar Corp. v. ICS INC., FA1443345 (Nat. Arb. Forum, June 7, 2012); Assurant, Inc. v. ICS INC., FA1447091 (Nat. Arb. Forum, July 17, 2012). On the point see Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use of a domain name pursuant to Policy ¶ 4(b)(ii) where a respondent had been subject to numerous UDRP proceedings in which panels ordered the transfer of disputed domain names containing the trademarks of various complainants). For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii). DECISION Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED. Accordingly, it is Ordered that the <ocwenmdlssettlement.com> domain name be TRANSFERRED forthwith from Respondent to Complainant. Terry F. Peppard, Panelist Dated: January 20, 2013 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

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