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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Caliber Home Loans, Inc v. Withheld for Privacy Purposes Privacy Service Provided by Withheld for Privacy ehf / Marcus Lai

Case No. D2021-2957

1. The Parties

The Complainant is Caliber Home Loans, Inc, United States of America (“U.S.”), represented by Dykema Gossett PLLC, U.S.

The Respondent is Withheld for Privacy Purposes Privacy Service Provided by Withheld for Privacy ehf, Iceland / Marcus Lai, U.S.

2. The Domain Name and Registrar

The disputed domain name <caliberhorneloans.com> is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 8, 2021. On September 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 8, 2021, the Registrar 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 13, 2021 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 amendment to the Complaint on September 15, 2021.

The Center verified that the Complaint together with the amendment to the 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 Respondent of the Complaint, and the proceedings commenced on September 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of the default on October 9, 2021. The Center appointed Steven Auvil as the sole panelist in this matter on October 14, 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 Complainant is a mortgage banking servicer based in Coppell, Texas. In addition to providing online lending services, the Complainant has physical locations throughout the U.S. and Puerto Rico.

The Complainant owns marks in connection with the CALIBER HOME LOANS name – U.S. Registration No. 5984588 (registered on February 11, 2020) and Puerto Rico Registration No. PR 215218 (registered on October 2, 2018). The Complainant also owns the domain name <caliberhomeloans.com> in connection with the CALIBER HOME LOANS name, and has used this domain name since July 2013.

The disputed domain name <caliberhorneloans.com> was registered on September 2, 2021. At the time, the Complaint was filed, the disputed domain name resolved to a pay-per-click website displaying links to third-party websites offering other mortgage lending and refinancing services. At the time of writing this Decision, the disputed domain name no longer resolves to an active website (i.e., the web browser returns a message indicating that that website “refused to connect”).

5. Parties’ Contentions

A. Complainant

The Complainant alleges that the disputed domain name is confusingly similar to its CALIBER HOME LOANS mark because the disputed domain name is the same except for the fact that it introduces a typographical error, in which the letter “m” is changed to “r” followed by “n.” The Complainant contends that the disputed domain name is likely to cause confusion for consumers legitimately searching for the Complainant’s website “www.caliberhomeloans.com”.

The Complainant also asserts that the Respondent has no rights or legitimate interests in the disputed domain name because the Respondent is not affiliated with the Complainant and has never obtained a license from the Complainant to use the CALIBER HOME LOANS mark. Additionally, the Complainant states that the Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services and, instead, is only using the name to mislead consumers to generate traffic for commercial gain.

The Complainant further asserts that the Respondent registered or used the name in bad faith because the Respondent’s primary purpose in registering the disputed domain name was for disrupting the Complainant’s business by creating a likelihood of confusion with the Complainant’s mark.

The Complainant requests that the disputed domain name be transferred to the Complainant.

B. Respondent

The Respondent did not respond to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 15(a) of the Rules: “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the disputed domain name is identical or confusingly similar to a trademark or a service in which the Complainant has rights;

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) that the disputed domain name has been registered and is being used in bad faith.

In view of the Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant’s undisputed allegations 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 Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009 (finding in the absence of a response, it is appropriate to accept “as true all of the allegations of the complaint”).

Based on the foregoing guidance, the Panel makes the following findings and conclusions on the basis of the allegations and evidence contained in the Complaint and reasonable inferences drawn from them.

A. Identical or Confusingly Similar

The Complainant is a U.S. domestic company that provides mortgage banking services for consumers in over 200 physical locations and online. The Complainant is the owner of registered service marks for the CALIBER HOME LOANS name. Additionally, the Complainant owns the domain name <caliberhomeloans.com>. The Panel therefore finds that the Complainant has rights in the CALIBER HOME LOANS mark.

As set forth in section 1.11 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the applicable Top Level Domain (e.g.,”.com”, “.site”, “.info”, “.shop”) “is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” Therefore, the presence of “.com” in the disputed domain name is irrelevant to the Panel’s decision.

Section 1.9 of the WIPO Overview 3.0 states that “[a] domain name which consists of a common, obvious, or intentional misspelling of a trademark (i.e., typosquatting) is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.”

Here, the disputed domain name <caliberhorneloans.com> consists of what the Complainant alleges is an intentional misspelling of the Complainant’s mark, specifically the letter “m” is replaced with the letters “r” and “n.” The Panel observes that the specific presentation of the letters “r” and “n” immediately adjacent to one another gives a strong resemblance of the letter “m.” It is likely that consumers will not notice the substitution and will read the disputed domain name as being the Complainant’s mark entirely. See Yamaha Motor Corporation, U.S.A. Vladimir Vankov, WIPO Case No. D2021-2419 (finding a substitution of “r” and “n” for the letter “m” as an intentional misspelling of the complainant’s YAHAMA trademark and therefore confusingly similar). See also Bulgari S.p.A. v. Domains By Proxy, LLC/ Carolina Rodrigues, Fundacio Comercio Electronico, WIPO Case No. D2021-2512 (finding the respondent’s replacement of the letter “i” with an “I” confusingly similar to the complainant’s trademark BVLGARI).

In view of the above, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to the Complainant’s mark. Therefore, the first element of paragraph 4(a) of the Policy is met.

B. Rights or Legitimate Interests

From the Complainant’s allegations and evidence and the inferences drawn from them, the CALIBER HOME LOANS mark is a distinctive and well-known mark registered by the Complainant. The Complainant did not license or otherwise authorize the Respondent’s use of the CALIBER HOME LOANS mark. Further, the Respondent was operating the disputed domain name to misleadingly divert consumers looking for the Complainant’s website to a pay-per-click website used for the Respondent’s commercial gain. Therefore, the Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.

Section 2.1 of the WIPO Overview 3.0 provides that “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”

Here, the Respondent has failed to provide any evidence demonstrating rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that the Respondent in fact has no rights or legitimate interests in the disputed domain name. Therefore, the second element of paragraph 4(a) of the Policy is satisfied.

C. Registered and Used in Bad Faith

Section 3.1.4 of WIPO Overview 3.0 provides that “[p]anels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.” Additionally, section 3.2.1 of the WIPO Overview 3.0 provides that “[p]articular circumstances panels may take into account in assessing whether the respondent’s registration of a domain name is in bad faith include: (i) the nature of the domain name (e.g., a typo of a widely-known mark, or a domain name incorporating the complainant’s mark plus an additional term such as a descriptive or geographic term, or one that corresponds to the complainant’s area of activity or natural zone of expansion) . . . (vi) a clear absence of rights or legitimate interests coupled with no credible explanation for the respondent’s choice of the domain name; or (viii) other indicia generally suggesting that the respondent had somehow targeted the complainant.”

Here, as noted above, the disputed domain name is a typo of the CALIBER HOME LOANS mark. At the time, the Complaint was filed, the disputed domain name resolved to a pay-per-click website with links to other mortgage lenders and refinancing servicers. Additionally, the Respondent provided no evidence demonstrating rights or legitimate interests in the disputed domain name, nor has the Respondent provided any explanation for the disputed domain name choice. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith. Therefore, the third element of paragraph 4(a) of the Policy is satisfied.

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 name <caliberhorneloans.com> be transferred to the Complainant.

Steven Auvil
Sole Panelist
Date: October 26, 2021

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