WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lennar Pacific Properties Management, Inc., Lennar Mortgage, LLC v. Registration Private, Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico, 杨智超 (Zhichao Yang)
Case No. D2021-4262
1. The Parties
The Complainants are Lennar Pacific Properties Management, Inc., and Lennar Mortgage, LLC, United States of America (“U.S.”), represented by Slates Harwell LLP, U.S.
The Respondents are Registration Private, Domains By Proxy, LLC, U.S. / Carolina Rodrigues, Fundacion Comercio Electronico, Panama, and 杨智超 (Zhichao Yang), China.
2. The Domain Names and Registrars
The first disputed domain name <lemmarmortgage.com> is registered with GoDaddy.com, LLC (“the first Registrar”), and the disputed domain name <lennarmortgahe.com> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (“the second Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 16, 2021. On December 17, 2021, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On December 20, 2021, the first Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the first disputed domain name which differed from the named Respondent and contact information in the Complaint. On December 21, 2021, the second Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the second disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on December 21, 2021, providing the registrant and contact information disclosed by the Registrars, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint on December 23, 2021.
On December 21, 2021, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. On December 22, 2021, the Complainants confirmed their 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 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 of the Complaint, and the proceedings commenced on December 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 17, 2022. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on January 18, 2022.
The Center appointed Francine Tan as the sole panelist in this matter on February 1, 2022. 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 are Lennar Pacific Properties Management, Inc. (“LPPM”) and Lennar Mortgage, LLC (“LM”). LPPM is the registered owner in the U.S. of the mark LENNAR (the “LENNAR Mark”) and has also filed a U.S. trademark application to register LENNAR MORTGAGE. LM is a related company and authorized licensee of the LENNAR Mark. LPPM owns, inter alia, U.S. Trademark Registration No. 3,108,401 for LENNAR, registered on June 27, 2006, and U.S. Registration No. 3,477,143 for LENNAR, registered on July 29, 2008. Additionally, LPPM applied on August 18, 2020 a U.S trademark registration for LENNAR MORTGAGE (Serial No. 90121641).
LM and LPPM own and operate the websites “www.lennarmortgage.com” and “www.lennar.com”, respectively, which offer services under the LENNAR Mark.
The Complainants state that they have offered real estate management, brokerage, development, construction, mortgage, and financial services under the LENNAR Mark since at least as early as 1973. The Complainants also state that LM has been one of America’s leading homebuilders since 1954 and builds and sells homes in 21 States in the U.S. The Complainants further state that their customers regularly provide sensitive and confidential financial information to/from employees utilizing their @lennarmortgage.com domain for email correspondence activities related to real estate lending and mortgage banking financial services, including correspondence regarding wiring funds in connection with home purchase funding transactions.
The disputed domain names <lemmarmortgage.com> and <lennarmortgahe.com> were registered on November 16, 2021, and December 3, 2021, respectively, and at the time the Complaint was filed, resolved to webpages with pay-per-click (“PPC”) links.
5. Parties’ Contentions
The disputed domain names are identical and/or confusingly similar to the Complainants’ LENNAR Mark. The disputed domain names are in the nature of typosquatting, with the words “lennar” and “mortgage” mis-spelt in the respective disputed domain names.
The Respondents have no rights or legitimate interests in the disputed domain names. The Respondents have no trade mark rights in the word LENNAR. The Respondents are not commonly known by the disputed domain names. There is no legitimate noncommercial or fair use of the disputed domain names by the Respondents.
The disputed domain names were registered and are being used in bad faith. The Respondents registered the disputed domain names for the primary purpose of disrupting the Complainants’ business and/or for the purpose of selling the disputed domain names to the Complainants or a competitor of the Complainants for a fee being more than out-of-pocket expenses incurred. The disputed domain names resolved to webpages containing PPC links, which are intended to attract Internet users for commercial gain by creating a likelihood of confusion with the LENNAR Mark.
The Respondents registered the disputed domain names shortly after LPPM filed a new U.S. trade mark application for LENNAR MORTGAGE and after LM began using the <lennarmortgage.com> domain name to advertise and offer its real estate lending and financial services.
Prior to the filing of the Complaint, LM sent cease-and-desist letters to the Respondents on December 9, 2021, and December 15, 2021, respectively, regarding the registration of the disputed domain names. The Respondents never responded. The Respondents registered the disputed domain names with the bad faith intent to either misdirect LM’s customers to a fake website, employ malware/viruses to obtain sensitive customer financial data, or to create and send phishing emails to LM’s customers. Furthermore, the Respondents each has an extensive history of bad faith domain name registrations.
The Respondents did not reply to the Complainants’ contentions.
6. Discussion and Findings
6.1 Preliminary Issue: Request for Consolidation of Respondents
The Complainants requested consolidation of the Respondents in a single Complaint.
Paragraphs 3(c) and 10(e) of the Rules, respectively, provide that:
“The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.”
“A Panel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules.”
It has been established by precedent UDRP panel decisions that the consolidation of multiple registrants as respondents in a single administrative proceeding may, in certain circumstances, be appropriate under paragraphs 3(c) or 10(e) of the Rules provided the complainant can demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel, having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties. (See Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons, WIPO Case No. D2010-0281; WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.2.) The range of factors that panels have considered in determining whether consolidation is appropriate include similarities in or relevant aspects of:
(i) the registrants’ identities;
(ii) the registrants’ contact information including email addresses, postal addresses, etc.;
(iii) the relevant IP addresses;
(iv) the content or layout of websites corresponding to the disputed domain names;
(v) any naming patterns; and
(vi) any evidence of respondent affiliation with respect to the ability to control the disputed domain names.
The Complainants contended that the first and second disputed domain names are “under the common management and control of a single, unknown owner”. They based this, firstly, on the premise that both disputed domain names contain highly similar typosquatting variants of the mark/word LENNAR and “mortgage”, as well as the <lennarmortgage.com> domain name. Secondly, both disputed domain names were registered within an approximate two-week period of each other, on November 16, 2021, and December 3, 2021, respectively. Thirdly, the Respondents have each been identified as respondents in numerous past UDRP cases in which domain names were held to have been registered in bad faith. Based on the foregoing factors, the Complainants submitted that the first and second disputed domain names are under the common management and control by the “same ultimately unknown bad actor registrant who is using well-known bad faith false registrant information to register both Domains” and that it is fair and equitable to consolidate the proceedings for procedural efficiency.
The Panel disagrees and finds that none of these factors, considered alone or in combination, supports the Complainants’ claim that there is common control being exercised by the Respondents over the disputed domain names. The first disputed domain name contains a mis-spelling of the LENNAR mark while the second disputed domain name contains a mis-spelling of the word “mortgage” term. These factors do not establish a “naming pattern”. There is no similarity between the Respondents’ identities and contact information. The content and layout of the webpages corresponding to the disputed domain names are dissimilar. The fact that each Respondent has a history of cybersquatting is, in itself, irrelevant. The Complainants have failed to demonstrate that each Respondent has the ability to control the other’s registered domain name which is in dispute, or that there is an affiliation between the Respondents.
Accordingly, having regard to the above circumstances, the Panel determines that the Complainants have failed to establish that this is an appropriate case for consolidation. The Panel therefore accepts the Complaint filed in relation to the first disputed domain name, <lemmarmortgage.com>, and will confine its decision accordingly. For the avoidance of doubt, the Complainants are at liberty to file a fresh Complaint in respect of the second disputed domain name. Further references hereinbelow to the Respondent and the disputed domain name are intended to refer solely to the first Respondent and the disputed domain name <lemmarmortgage.com>.
6.2 Substantive Issues:
A. Identical or Confusingly Similar
The Complainants have established they have rights in the LENNAR Mark. The LENNAR Mark have been mis-spelt in the disputed domain name <lemmarmortgage.com> wherein the letter “n” has been substituted with the letter “m”. The Panel agrees that the difference in spelling does not serve to avoid confusing similarity with the Complainants’ LENNAR Mark. The Panel is persuaded that the Respondent deliberately chose the dispute domain name featuring the mis-spelling, bearing in mind that the letters “n” and “m” are juxtaposed on a QWERTY keyboard, as Internet users are very likely to type the wrong domain name when looking for the Complainants’ website and services.
The generic Top-Level Domain “.com” is a technical requirement for domain name registrations and its existence in the disputed domain name is not relevant to the issue of the identity or confusing similarity between the disputed domain name and the Complainants’ trade mark.
The Panel accordingly finds that the first element of paragraph 4(a) of the Policy has been satisfied.
B. Rights or Legitimate Interests
The Panel finds that the Complainants have established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainants’ use and registrations of the LENNAR Mark long predate the registration date of the disputed domain name. The Complainants did not license or authorize the Respondent to use the LENNAR Mark as a trade mark or in a domain name. Neither is there evidence that the Respondent is commonly known by the name “Lennar” or “lemmarmortgage”. The use of the disputed domain name which incorporates a mis-spelling of the Complainants’ LENNAR Mark to a webpage offering PPC links does not constitute a bona fide offering of goods and services within the contemplation of paragraph 4(c)(i) of the Policy.
The Complainants’ prima facie case has been established and unrebutted by the Respondent. Accordingly, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
The Panel therefore finds that the second element of paragraph 4(a) of the Policy has been satisfied.
C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered and is being used in bad faith. It is not at all plausible that the Respondent, by pure coincidence and without prior knowledge of the Complainants and their LENNAR Mark, selected the disputed domain name. The Panel concludes that the Respondent registered and is using the disputed domain name in bad faith, with the intention to attempt to attract, for commercial gain, Internet users to the parking page, to unfairly take advantage of the Complainants’ goodwill by profiting from the confusion with the Complainants’ long-established LEMMAR Mark. The Complainants have an established reputation in the real estate and mortgage industry and the fact that the disputed domain name <lemmarmortgage.com> is virtually identical to the Complainants’ domain name <lennarmortgage.com>, which they use for their business, is a strong indicator of bad faith registration and use. The Panel also took into consideration the fact that the Respondent never responded to the Complainants’ cease–and-desist letter, which was issued prior to the filing of the Complaint, and draws an adverse inference against the Respondent. The Panel is persuaded that the Respondent was well aware of the Complainants and their LENNAR Mark and specifically targeted them when it registered the disputed domain name. Moreover, as is stated in section 3.1.4 of the WIPO Overview 3.0, “[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 trade mark by an unaffiliated entity can by itself create a presumption of bad faith”.
The Panel therefore finds that the third element of paragraph 4(a) of the Policy has been satisfied.
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 <lemmarmortgage.com> be transferred, as requested, to the Complainant, LPPM.
The claim against the named Respondent 杨智超 (Zhichao Yang) regarding the disputed domain name <lennarmortgahe.com> is dismissed without prejudice. The Complainant is free to re-file a separate Complaint under the Policy as to that named Respondent and its associated domain name.
Date: February 8, 2022