WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Lennar Pacific Properties Management, Inc., Lennar Mortgage, LLC v. 徐海民 (Xu Hai Min), 权中俊 (Quan Zhong Jun), 殷磊 (Lei Yin), 杨智强 (Zhi Qiang Yang)

Case No. D2021-0576

1. The Parties

The Complainants are Lennar Pacific Properties Management, Inc., Lennar Mortgage, LLC, United States of America (“United States”), represented by Slates Harwell LLP, United States.

The Respondents are 徐海民 (Xu Hai Min), 权中俊 (Quan Zhong Jun), 殷磊 (Lei Yin), 杨智强 (Zhi Qiang Yang), China.

2. The Domain Names and Registrars

The disputed domain names <lannarmortgage.com>, <lennaemortgage.com>, <lennarmirtgage.com>, <lennarmoetgage.com>, <lennarmortagage.com>, <lennarmortage.com>, <lennarmortgae.com>, <lennarmortgag.com>, <lennarmortgagr.com>, <lennarmortgge.com>, <lennarmortgsge.com>, <lennarmorygage.com>, <lennarmotgage.com>, <lennarmrtgage.com>, <lennarnortgage.com>, <lennarortgage.com>, <lennatmortgage.com>, <lennnarmortgage.com>, <lennrmortgage.com>, <lennsrmortgage.com> and <lnnarmortgage.com> are registered with DNSPod, Inc (the “Registrar”).

The disputed domain name <lennarmortgate.com> is registered with Cloud Yuqu LLC.

The disputed domain names <lennarmortgagw.com>, <lennarmprtgage.com> and <lrnnarmortgage.com> are registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2021. The amendments to the Complaint requesting to add further disputed domain names were filed in English with the Center on March 5, 2021, March 29, 2021, April 5, 2021 and April 21, 2021. On February 25, 2021, March 11, 2021, March 31, 2021, April 14, 2021 and April 22, 2021, the Center transmitted by email to the Registrars requests for registrar verification in connection with the disputed domain names. On March 12, 2021, March 15, 2021, April 1, 2021, April 16, 2021 and April 23, 2021, the Registrars transmitted by email to the Center their verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondents and contact information in the Complaint. The Center sent an email communication to the Complainants on May 1, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint in English on May 5, 2021.

On May 7, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On May 10, 2021, the Complainants submitted a request that English be the language of the proceeding. The Respondents did not comment on the language of the proceeding.

The Center verified that the Complaint together with the amendments to the Complaint and 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 the Respondents in English and Chinese of the Complaint, and the proceedings commenced on May 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 3, 2021. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on July 7, 2021.

The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on July 16, 2021. 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 Complainants in this administrative proceeding are affiliated companies headquartered in the Unites States of America, offering real estate management, brokerage, development, construction, financial services, mortgage brokerage and banking services in connection with the sale of real estate. The Complainant Lennar Mortgage, LLC is Lennar Pacific Properties Management, Inc.’s subsidiary and licensee, and operates the website hosted at the Complainants’ official domain name <lennarmortgage.com>. The Complainant Lennar Mortgage, LLC claims to be one of the leading homebuilders in the United States, and builds and sells homes in twenty-one states of the United States.

The Complainants are, respectively, the owner and the licensee of a portfolio of trademark registrations for LENNAR, for instance, United States trademark registration number 3,108,401, registered on June 27, 2006 and United States trademark registration number 3,477,143, registered on July 29, 2008.

The disputed domain names were all registered between December 5, 2020 and April 11, 2021, and are therefore of later dates than the abovementioned trademarks of the Complainants. The disputed domain names are currently all linked to active websites, each displaying what are presumed to be pay-per-click hyperlinks relating to the Complainants’ trademarks and/or to real estate, mortgages and loan services (e.g. “mortgage loans,” “home mortgage,” refinance home mortgage,” and “home loan payment”).

5. Parties’ Contentions

A. Complainants

The Complainants contend that the disputed domain names are confusingly similar to their prior trademark rights for LENNAR, that the Respondents have no rights or legitimate interests in respect of the disputed domain names, and that the disputed domain names were registered, and are being used in bad faith.

The Complainants essentially contend that the Respondents chose to register the disputed domain names by willfully misspelling (“typosquatting”) the Complainants’ trademarks for LENNAR and the word “mortgage” to create consumer confusion and obtain unlawful financial gains. The Complainants also point out the opportunistic registration behavior of the Respondents by registering the disputed domain names only six months after the Complainant Lennar Pacific Properties Management, Inc., applied for the mark LENNAR MORTGAGE and less than three months after the Complainant Lennar Mortgage, LLC updated and began using its official domain name <lennarmortgage.com> to advertise and offer its real estate lending and financial services. The Complainants also contend that use of the disputed domain names made by the Respondents in this case, i.e. hosting websites showing pay-per-click hyperlinks, does not confer any rights or legitimate interests in respect of the disputed domain names and constitutes registration and use in bad faith.

The Complainants request the transfer of the disputed domain names.

B. Respondents

The Respondents did not reply to the Complainants’ contentions.

6. Discussion and Findings

6.1 First Preliminary Issue: Consolidation of Complainants

The Complainants request consolidation in regard to the Complainants. In this regard, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”) states in section 4.11.1: “In assessing whether a complaint filed by multiple complainants may be brought against a single respondent, panels look at whether (i) the complainants have a specific common grievance against the respondent, or the respondent has engaged in common conduct that has affected the complainants in a similar fashion, and (ii) it would be equitable and procedurally efficient to permit the consolidation.”

The Panel has carefully reviewed all elements of this case, giving particular weight to the following elements: the Complainant Lennar Pacific Properties Management, Inc. is the owner of the trademark registrations for the mark LENNAR, while the other Complainant Lennar Mortgage, LLC is its affiliate and licensee of such marks and also owns and operates the website hosted at the Complainants’ official domain name <lennarmortgage.com>. As such, the Panel concludes that both Complainants are the target of common conduct by the Respondents and both have common grievances regarding the use of their trademarks in the disputed domain names by the Respondents. The Panel accepts that permitting the consolidation would be fair and equitable to all Parties involved and would safeguard procedural efficiency. The Panel therefore allows the request for consolidation of the Complainants.

6.2 Second Preliminary Issue: Consolidation of Respondents

The Complainants furthermore request consolidation in regard to the Respondents, as the disputed domain names are currently owned by multiple persons. In this regard, the WIPO Overview 3.0 states in section 4.11.2: “where a complaint is filed against multiple Respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.”

The Panel has carefully reviewed all elements of this case, giving particular weight to the following elements: the fact that the disputed domain names were all registered relatively closely together in time, namely between December 5, 2020 and April 11, 2021; the fact that all disputed domain names are linked to very similar websites containing pay-per-click hyperlinks relating to the Complainants’ trademarks and/or to real estate, mortgages and loan services (e.g. “mortgage loans,” “home mortgage,” refinance home mortgage,” and “home loan payment,”); the fact that each of the disputed domain names consist of an intentional misspelling (“typo”) of the Complainants’ trademarks for LENNAR combined with the word “mortgage” (this latter word also misspelled in several of the disputed domain name), thereby exposing a clear pattern. The Panel also notes that the Respondents did not submit any arguments and did not contest the request for consolidation.

In view of these elements, the Panel finds that the websites linked to the disputed domain names are likely under common control, that, in this case, consolidation would be fair and equitable to all parties involved and would safeguard procedural efficiency. The Panel also notes that the fact that the disputed domain names were created with different Registrars does not alter this finding, as it does not exclude common control (see in this regard also H & M Hennes & Mauritz AB v. Privacy Guardian, See PrivacyGuardian.org; Joyce Cheadle; Gilberto Andino; Xue Lin, WIPO Case No. D2019-0454 and Mou Limited v. Whois Agent, Domain Whois Privacy Protection Service, Domain Admin Privacy Protect, LLC (PrivacyProtect.org) / Luo Yuandong, Laoyuandong, Song Li Hong, Sun YanQi, WIPO Case No. D2018-1891).

6.3 Third Preliminary Issue: Language of the administrative proceeding

Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

The Complainants state in their Complaint that the language of the Registration Agreements is Chinese, but request that the Panel determine that the language of the proceeding be English. On May 7, 2021, the Center confirmed via email to the Parties that the language of the Registration Agreements is Chinese. On May 10, 2021, the Complainants confirmed their request that English be the language of the proceeding. The Respondents did not make any comments on the language of the proceeding and did not submit any arguments on the merits.

The Panel has carefully considered all elements of this case, in particular, the Complainants’ request that the language of the proceeding be English; the fact that the Respondents did not comment on the language of the proceeding and did not submit arguments on the merits (while they were invited to do so in either Chinese or English); the fact that the disputed domain names all contain (misspelled) words in English and that the websites hosted at the disputed domain names are all exclusively in English and do not contain any text in Chinese, from which the Panel deducts that the Respondents understand, and are able to communicate in English; and the fact that Chinese as the language of proceedings could lead to unwarranted costs and delays for the Complainants. In view of all these elements, the Panel finds that the language of the administrative proceeding shall be English.

6.4 Discussion and Findings on the merits

The Policy requires the Complainants to prove three elements:

(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainants have rights;

(ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and

(iii) the disputed domain names have been registered and are being used in bad faith.

Based on the evidence and arguments submitted, the Panel’s findings are as follows:

A. Identical or Confusingly Similar

The Panel finds that the Complainants have shown sufficient evidence that they have valid rights in the mark LENNAR, based on their intensive use and registration of the same as trademarks in several jurisdictions. For the purposes of this first limb of this administrative proceeding, the Panel disregards the Complainants’ trademark application for LENNAR MORTGAGE as this application has, according to the Complaint and evidence submitted, not yet been granted registration and the Complainants did not submit sufficient evidence to assert unregistered or common law trademark rights for this mark (see WIPO Overview 3.0, section 1.3).

As to confusing similarity, the WIPO Overview 3.0, section 1.9, states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. In this case, the Panel considers that the disputed domain names were all obviously selected by intentionally misspelling the Complainants’ trademark for LENNAR, incorporating such trademark in its entirety, except that in some of the disputed domain names letters are replaced and/or omitted from such trademark. According to the Panel, this is a clear case of intentional misspelling of the Complainants’ trademark, or typosquatting. The Panel furthermore finds that the added term of the disputed domain names, namely the term “mortgage”, which has also been intentionally misspelled in most of the disputed domain names, is a dictionary term (connected to the Complainants’ services), which is not capable of preventing a finding of confusing similarity between the disputed domain name and the Complainant’s trademarks. The applicable generic Top-Level Domain (“gTLD”) (“.com” in this case) is viewed as a standard registration requirement, and as such is disregarded by the Panel, see in this regard the WIPO Overview 3.0, section 1.11.1.

Accordingly, the Panel finds that the disputed domain names are confusingly similar to the Complainants’ trademarks for LENNAR and finds that the Complainants have satisfied the requirements of the first element under the Policy.

B. Rights or Legitimate Interests

On the basis of the evidence and arguments submitted, the Panel finds that the Complainants make out a prima facie case that that the Respondents are not, and have never been, authorized resellers, service providers, licensees or distributors of the Complainants, are not good faith providers of goods or services under the disputed domain names and are not making legitimate noncommercial use or fair use of the Complainants’ trademarks. The Panel also notes that the Respondents are not commonly known by the disputed domain names. As such, the Panel finds that the burden of production regarding this element shifts to the Respondents (see WIPO Overview 3.0, section 2.1). However, the Respondents did not provide any Response or evidence in this administrative proceeding.

Furthermore, upon review of the facts, the Panel notes that the disputed domain names direct to active webpages containing what are presumed to be pay-per-click hyperlinks relating to the Complainants’ trademarks and/or to real estate, mortgages and loan services (e.g. “mortgage loans,” “home mortgage,” refinance home mortgage,” and “home loan payment”). This shows the Respondents’ intention to divert consumers for commercial gain to such third party websites, by taking unfair advantage of the goodwill and reputation of the Complainants’ trademarks for LENNAR (see also previous UDRP decisions in this sense such as Maker Studios, Inc. v. ORM LTD / Contact Privacy Inc. Customer 0137258808, WIPO Case No. D2014-0918; Comerica Incorporated v. Balticsea LLC / Contact Privacy Inc. Customer 0131519121, WIPO Case No. D2013-0932 and Alain Afflelou Franchiseur v. Lihongbo, Lihongbo, WIPO Case No. D2020-2075).

On the basis of the foregoing, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainants have satisfied the requirements of the second element under the Policy.

C. Registered and Used in Bad Faith

The Panel finds that the registration of the disputed domain names with the clearly intentional misspelling of the Complainants’ trademark by the Respondents, who are entirely unaffiliated with the Complainants, is, by itself, sufficient to create a presumption of bad faith of the Respondents (see in this regard also Randstad Holding nv v. Pinaki Kar, WIPO Case No. D2013-1796 and Alain Afflelou Franchiseur v. Lihongbo, Lihongbo, WIPO Case No. D2020-2075). Furthermore, the Panel considers that the disputed domain names were registered in a purely opportunistic and bad faith manner by the Respondents, which have registered them only six months after the Complainant Lennar Pacific Properties Management, Inc. applied for the mark LENNAR MORTGAGE and less than three months after the Complainant Lennar Mortgage, LLC began using its official domain name <lennarmortgage.com> to advertise and offer its real estate lending and financial services. In the Panel’s view, the preceding elements clearly indicate the bad faith of the Respondents, and the Panel therefore rules that it has been demonstrated that the Respondents registered the disputed domain names in bad faith.

As to use of the disputed domain names in bad faith, the websites linked to the disputed domain names currently display pay-per-click hyperlinks relating to the Complainants’ trademarks and/or to real estate, mortgages and loan services (e.g. “mortgage loans,” “home mortgage,” refinance home mortgage,” and “home loan payment”), which shows that the Respondents are misleading and diverting consumers for commercial gain to such websites. Furthermore, the Complainants also provide evidence that at least two of the four Respondents were held by panels in prior UDRP cases to have conducted typosquatting, which indicates a pattern of the Respondents’ bad-faith regarding the disputed domain names (e.g. Discover Financial Services v. 徐海民 (Xu Hai Min), WIPO Case No. D2020-3297 and Milliman, Inc. v. QuanZhong Jun, Quan Zhong Jun (权中俊), WIPO Case No. D2020-0536). The preceding elements lead the Panel to conclude that the Respondents are using the disputed domain names in bad faith, to take unfair advantage of the Complainants’ trademarks. The Panel therefore rules that it has been demonstrated that the Respondents are using the disputed domain names in bad faith.

Finally, the Respondents have failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore finds that the Complainants have satisfied the requirements of the third element under the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <lannarmortgage.com>, <lennaemortgage.com>, <lennarmirtgage.com>, <lennarmoetgage.com>, <lennarmortagage.com>, <lennarmortage.com>, <lennarmortgae.com>, <lennarmortgag.com>, <lennarmortgagr.com>, <lennarmortgagw.com>, <lennarmortgate.com>, <lennarmortgge.com>, <lennarmortgsge.com>, <lennarmorygage.com>, <lennarmotgage.com>, <lennarmprtgage.com>, <lennarmrtgage.com>, <lennarnortgage.com>, <lennarortgage.com>, <lennatmortgage.com>, <lennnarmortgage.com>, <lennrmortgage.com>, <lennsrmortgage.com>, <lnnarmortgage.com> and <lrnnarmortgage.com> be transferred to the Complainant Lennar Mortgage, LLC.

Deanna Wong Wai Man
Sole Panelist
Date: July 30, 2021