WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Flagstar Bank, FSB v. BuyDomains
Case No. D2011-1501
1. The Parties
The Complainant is Flagstar Bank, FSB of Troy, Michigan, United States of America, represented by Kerr, Russell and Weber, PLC, United States of America.
The Respondent is BuyDomains and Peter and/or Paul Ouzounian1 of Glendale, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <wwwflagstar.com> (the “Domain Name”) is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2011. On September 7, 2011, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On the same date, eNom. 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 September 16, 2011 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 amended Complaint on September 19, 2011.
The Center verified that the Complaint together with the amended 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 20, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 10, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 11, 2011.
The Center appointed Michelle Brownlee as the sole panelist in this matter on October 20, 2011. 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 owns United States Trademark Registration No. 2,015,294 for the mark FLAGSTAR for savings and loan services. This registration issued in 1996. The Complainant also owns several other registrations in the United States of America for trademarks that include the term “Flagstar”. The Domain Name was registered in 2003.
5. Parties’ Contentions
The Complainant is a federally chartered savings bank with operations in several different states. The Complainant has operated under the FLAGSTAR mark since 1996. The Complainant has assets of over USD 12.7 billion and conducts a substantial amount of commerce in conjunction with various marks that include the term “Flagstar”. The Complainant has been the registered owner of the domain name <flagstar.com> since 1996.
The Respondent is a typosquatter in that it is taking advantage of a common typographical error when Internet users erroneously omit the “dot” after “www”. The Respondent is a serial cybersquatter, and has been a respondent in at least one other UDRP case. The Respondent does not provide any goods or services. Rather, the Respondent’s web site consists of links and banner ads for financial services offered by other parties, including entities that compete directly with the Complainant in the banking and financial services market. The Complainant’s rights in its trademark predate the registration of the Domain Name by seven years.
The Complainant argues that the Domain Name is confusingly similar to the FLAGSTAR trademark in which it has rights, that the Respondent has no legitimate rights to or interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name at issue is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has demonstrated that it owns rights in the FLAGSTAR trademark. The addition of the letters “www”, which would appear to be aimed at mimicking the “world wide web” prefix in order to attract traffic through typographical errors (the unintentional omission of the “dot”), does not serve to distinguish the Domain Name from the Complainant’s trademark. Pairing of Complainant’s trademark with the letters “www” is likely to appear to Internet users as though the Domain Name is identical to Complainant’s trademark, because most URLs include “www” followed by a period before the second level domain name, and Internet users would most likely not notice the omission of the period. See, e.g., MasterCard International Incorporated v. Cyber Blue Media/Richard Randolph, WIPO Case No. D2007-1137.
The Panel finds that the Domain Name is confusingly similar to the FLAGSTAR mark in which the Complainant has rights.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights to or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; 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 at issue.
In this case, the Respondent has not presented evidence that it used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services, that it is commonly known by the Domain Name or that it is making a legitimate noncommercial or fair use of the Domain Name, or in any other way refuted the Complainant’s prima facie case. The Complainant has presented evidence, which was not refuted by the Respondent, that the latter is using the Domain Name to provide links to websites that offer financial services, presumably in order to collect click-through referral fees. This activity cannot under the circumstances be considered a bona fide offering of goods or services. See, e.g., PRL USA Holdings, Inc. v. LucasCobb, WIPO Case No. D2006-0162.
Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name at issue primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainant has established bad faith under paragraph 4(b)(iv) of the Policy. The Respondent’s use of the Domain Name to earn referral fees by linking to other websites attracts Internet users to the Respondent’s web site by creating confusion as to source and results in commercial gain to the Respondent. The use of a common typographical error of another party’s domain name that includes its trademark, also known as “typosquatting,” has repeatedly been found to constitute bad faith registration and use. See MasterCard International Incorporated v. Cyber Blue Media/Richard Randolph, WIPO Case No. D2007-1137; The Nasdaq Stock Market, Inc. v. Shawn Cain d/b/a Star Inc., WIPO Case No. D2002-1125.
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 <wwwflagstar.com> be transferred to the Complainant.
Dated: November 3, 2011
1 The Complainant named “Peter Ouzounian” in the caption of the original Complaint that was filed with the Center. In the body of the Complaint, the Respondent is named as “Paul Ouzounian.” The Complainant submitted evidence that Paul Ouzounian is an individual who is associated with the email address that was listed in the WhoIs information for the Domain Name, which listed otherwise nonsensical address information. It would seem that “Peter Ouzounian” was an error and the caption should have listed “Paul Ouzounian.” In any event, the Complaint was subsequently amended to list the Registrar-confirmed registrant as the Respondent. Nevertheless, the Panel will treat all of these parties as a single Respondent in this case.