WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lennar Pacific Properties Management, Inc., Lennar Corporation v. Contact Privacy Inc. Customer 0154301177 / Wing Wong, Contact Privacy Inc. Customer 1244207628 / Eric Carmichael
Case No. D2019-0880
1. The Parties
Complainant is Lennar Pacific Properties Management, Inc., Lennar Corporation, United States of America, represented by Slates Harwell LLP, United States of America.
Respondent is Contact Privacy Inc. Customer 0154301177 / Wing Wong, Contact Privacy Inc. Customer 1244207628 / Eric Carmichael, United States of America.
2. The Domain Names and Registrars
The disputed domain names <len-nar.com> and <lennarr.com> (the “Domain Names”) are registered with Tucows Inc. and Google LLC (the “Registrars”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 17, 2019. On April 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On April 18, 2019, the Registrars transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 25, 2019 providing the registrant and contact information disclosed by the Registrars, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 30, 2019.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 9, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 29, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 6, 2019.
The Center appointed Robert A. Badgley as the sole panelist in this matter on June 17, 2019. 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
Complainant Lennar Pacific Properties Management, Inc. (“LPPM”) and Complainant Lennar Corporation (“Lennar”) are related corporations. LPPM holds trademark rights to which Lennar is a licensee. Hereafter, the two entities will be jointly referred to as “Complainant.”
Complainant holds the trademark LENNAR, registered on June 27, 2006 with the United States Patent and Trademark Office under Reg. No. 3,108,401 for services including “construction in the fields of real estate management and real estate brokering; real estate management and real estate brokerage services of residential communities, undeveloped properties and individual residences,” “mortgage services, title insurance services, and insurance agency services,” and other services largely related to real estate. Complainant has used the LENNAR mark in commerce since May 1973.
Complainant alleges that it “has been one of America’s leading homebuilders since 1954 and builds and sells homes in 21 states in the United States.”
Complainant owns the domain name <lennar.com> and uses that domain name both to host its commercial website and as the root for its employee email addresses (e.g., firstname.lastname@example.org).
Both Domain Names were registered on March 25, 2019. Neither of the two Respondents (assuming they are in fact separate individuals) has responded to the Complaint in this proceeding. Complainant asserts that the two purported Respondents are in fact the same person or, at a minimum, the two Domain Names are under common control. In aid of this argument, Complainant points not only to the common date of registration, but to the fact that both Domain Names were registered that day under the initial registrant name “Contact Privacy Inc.” Complainant also notes that both Domain Names reflect slight “typos” of the LENNAR mark (one adds a hyphen and the other adds an “r”).
Finally, Complainant asserts that the “registrant” information for both Domain Names, as disclosed by the Registrars, is “false and invalid.” With respect to Respondent Wing Wong, Complainant asserts that Wing Wong is the actual name of a Complainant employee under whose name Respondent sent a fraudulent email seeking to elicit a money transfer. With respect to Respondent Eric Carmichael, Complainant asserts that the email address provided in the Whois database is a false email that yields an undeliverable message to the sender. Complainant adds that the false email provided by this Respondent is a slight variation from a legitimate email address of a lawyer in another state, not the state (Florida) in which the Whois database indicates as Eric Carmichael’s state of residence.
The Domain Name <len-nar.com> resolves to a parking page containing a click-through advertisement for Zoho, which apparently offers website development services.
On April 3, 2019, Respondent “Wing Wong” sent an email, using the address email@example.com, to send an email to the (real) employee of a title insurance company, asking the recipient to send the funds for a real estate transaction to a particular bank account. Complainant employee Wing Wong became aware of this attempted fraud the next day and apparently put a stop to it.
5. Parties’ Contentions
Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Names.
Neither Respondent has replied to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to each of the Domain Names:
(i) the Domain Name 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.
The Panel must first address the issue of consolidation.
A. Consolidation of Domain Names in a Single Proceeding
Complainant asks the Panel to consider both Domain Names in this proceeding, even though there are two different listed Respondents. The Panel concludes on this record that consolidation is warranted here.
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) addresses consolidation in section 4.11.2 (“Complaint consolidated against multiple respondents”). Under the WIPO Overview 3.0, the key consideration is whether the domain names or corresponding websites are under “common control,” and whether consolidation would be “fair and equitable to all parties.”
In the application of these principles to specific cases, the WIPO Overview 3.0 indicates that panels have considered a wide variety of factors. As applied to the present case, the Panel finds several facts, set forth above, to be relevant. First, both Domain Names were registered on the same day. That is too coincidental to be ignored. Second, both initial registrant names were “Contact Privacy Inc.” Third, both registrants’ names, when disclosed by the Registrars, appear to be fake names (or, more precisely, the appropriated names of other people besides Respondent(s). Fourth, and above all, neither Respondent has come forward in this proceeding to disavow that he is not the other Respondent.
Under these circumstances, and on this undisputed record, the Panel finds that both Respondents are one and the same person or entity. Accordingly, the Panel will regard them as one Respondent and will impute the conduct of the one to the other.
B. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the mark LENNAR through registration and use demonstrated in the record.
The Panel concludes further that the Domain Names are confusingly similar to the LENNAR mark. In each case, the Domain Name incorporates the LENNAR mark in its entirety and adds a hyphen in the middle (which does not materially alter the pronunciation of the word) or an extra “r” at the end (which, again, does not alter the pronunciation of the word). These minor typos do not overcome the confusing similarity between the mark and the Domain Names.
Complainant has established Policy paragraph 4(a)(i).
C. Rights or Legitimate Interests
For each of the Domain Names, pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your 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
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Names. Respondent has not come forward to explain his bona fides vis-à-vis the Domain Names. One of the Domain Names resolves to a parking page containing a click-through links to an unrelated commercial website. That Domain Name has also been used for an attempted email fraud scheme against a client of Complainant. That is not a legitimate use of the Domain Names.
Complainant has established Policy paragraph 4(a)(ii).
D. Registered and Used in Bad Faith
For each of the Domain Names, paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Names in bad faith. Both Domain Names closely resemble Complainant’s LENNAR trademark, and Respondent used the Domain Name <len-nar.com> to attempt to appropriate the identity of an actual Complainant employee and perpetrate a fraud on someone engaged in the real estate business (Complainant’s field of activity). On this basis, the Panel finds it obvious that Respondent had Complainant’s mark in mind when registering the Domain Names.
It is equally obvious that the <len-nar.com> Domain Name has been used in bad faith, as is illustrated by the email fraud scam Respondent tried to pull. This bad faith conduct may also be imputed to Respondent with respect to the other Domain Name, <lennarr.com>. Complainant does not need to wait around for Respondent to use the latter Domain Name for fraudulent purposes before seeking the relief to which it is entitled under the Policy.
Complainant has established Policy paragraph 4(a)(iii).
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 <len-nar.com> and <lennarr.com> be transferred to Complainant.
Robert A. Badgley
Date: June 25, 2019