The Complainants are Lennar Pacific Properties Management, Inc., and CalAtlantic Title, Inc., United States of America (“United States”), represented by Slates Harwell LLP, United States (collectively, the “Complainant”).
The Respondent is Contact Privacy Inc. Customer 1245361062, Canada / JSL LLC, United States.
The disputed domain name <carlatl.com> (the “Domain Name”) is registered with Google LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2019. On September 17, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 18, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 20, 2019 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 24, 2019.
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 27, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 17, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2019.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on October 25, 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.
The Complainants Lennar Pacific Properties Management, Inc. (“LPPM”) and CalAtlantic Title, Inc. (“CALATL”) are both corporations organized under the law of the United States state of Delaware and headquartered in Miami, Florida, United States. They are affiliates in the group of companies controlled by Lennar Corporation, a publicly traded home construction and real estate group. The Complainants offer real estate title, escrow, and real estate closing services. CALATL provides escrow and closing services through offices in thirteen states of the United States. Since 2015, CALATL has used the domain name <calatl.com> for its website and also for email addresses to conduct business related to real estate closings and title and escrow services.
LPPM owns relevant, registered trademarks and licenses them to CALATL, including the following standard-character “CalAtlantic Marks” used in CALATL’s business:
|
MARK |
REGISTRATION NUMBER |
REGISTRATION DATE |
|
CALATLANTIC HOMES (standard characters) |
5087767 |
November 22, 2016 |
|
CALATLANTIC INSURANCE (standard characters) |
5335863 |
November 14, 2017 |
|
CALATLANTIC TITLE (standard characters) |
5341178 |
November 21, 2017 |
|
CALATLANTIC (standard characters) |
5486887 |
June 5, 2018 |
|
CALATLANTIC GROUP, INC. (standard characters) |
5498205 |
June 19, 2018 |
(Design marks registered by LPPM and used by CALATL also incorporate the name “CALATLANTIC”.)
The Respondent has taken pains to obscure its identity and has not replied to communications in this proceeding. The Registrar reports that the Domain Name was created on August 30, 2019 and registered in the name of a domain privacy service. Following notice of this dispute, the Register identified the registrant as the Respondent JSL LLC, with a postal address in Philadelphia, Pennsylvania, United States and an email address using the domain name <ocfreallty.com>, apparently misspelling the word “realty”. While <ocfrealty.com> is associated with the website of an actual Philadelphia real estate firm, <ofcreallty.com> does not resolve to an active website. According to the WhoIs database, it was registered a month before the Domain Name at issue in this proceeding, with the same Registrar, using the same privacy service. “JSL LLC” of Philadelphia, Pennsylvania is not an entity that appears to have an online presence, and it does not appear in the online database of registered companies maintained by the Pennsylvania Department of State.
At the time of this Decision, the Domain Name does not resolve to an active website, and the Internet Archive’s Wayback Machine has no archived screenshots associated with the Domain Name. From a screenshot attached to the Complaint, it appears that at least one search engine produced an error page associated with the Domain Name displaying third-party pay-per-click (“PPC”) advertising links.
However, there is evidence that the Respondent has used the Domain Name for an email account in furtherance of a fraud scheme. On August 30, 2019, the same day that the Domain Name was registered, an email was sent to a customer of the Complainant using the Domain Name. The email, attached to the Complaint, ostensibly was sent by one of the Complainant’s employees. The email attached wire transfer instructions to send funds to a bank in California, in an attempt to divert the proceeds of a pending loan to purchase a home.
The Complainant contends that the Domain Name is confusingly similar to its various CalAtlantic Marks, “typosquatting” an abbreviation of the mark, “CalAtl”, that is used for the Complainant’s own domain name. The Complainant asserts that the Respondent has no permission to use the marks and otherwise lacks rights or legitimate interests in the Domain Name, which it seeks to use for unlawful purposes through fraudulent emails.
The Complainant argues that this attempted fraud must be considered bad faith under the Policy.
The Respondent did not reply to the Complainant’s contentions.
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the 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.
Under 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”.
The Rules, paragraph 3(c), contemplate that a complaint may relate to more than one domain name, provided that the domain names are registered by the same person, while paragraph 10(e) also gives panels the authority to consolidate multiple domain name disputes. In assessing whether a complaint may be filed by multiple complainants, as in this proceeding, panels consider 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. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.1.
The Complainants in this instance are part of the same corporate group. The Complainant LPPM owns the registered trademarks at issue and licenses them to the Complainant CALATL for use in its business. The Panel finds that the Complainants have a common grievance against the Respondent and that it is equitable and efficient to permit the consolidation of their complaints in this proceeding.
The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview 3.0, section 1.7.
The Domain Name is not a dictionary word or phrase. It consists of the first six characters of the Complainant’s registered CALATLANTIC mark, the same abbreviation of the mark used by the Complainant for its own domain name, and inserts the letter “r”, creating a close approximation of the abbreviated form of the mark that especially lends itself to misapprehension in an email address. Taking all the circumstances into consideration, the Panel finds the Domain Name confusingly similar to the Complainant’s mark in appearance in sense, as it was clearly meant to be. As in most cases, the generic Top-Level Domain (“gTLD”) “.com” is disregarded. Id., section 1.7.
The Panel finds, therefore, that the Complainant has established the first element of the Complaint.
Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondents may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following:
(i) before any notice to it of the dispute, the Respondent’s 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) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; 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 or service mark at issue.
Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1.
Here, the Complainant makes a prima facie case with evidence of trademark rights, confusing similarity, lack of permissive use, and fraudulent email use. The Respondent has not come forward with evidence of rights or legitimate interests, and none are evident on this record. Accordingly, the Panel concludes that the Complainant has established the second element of the Complaint.
The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following suggested by the Complainant (in which “you” refers to the registrant of the domain name):
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The isolated instance of redirected PPC links from an error page is ambiguous, because it seems that the Respondent has not even parked the Domain Name by default, much less deliberately engaged in a PPC program. But this is hardly material, because the illustrations of bad faith in the Policy, paragraph 4(b), are not exclusive. The evidence is damning that the Respondent attempted to defraud the Complainant or its customer on the same day that it registered the Domain Name by using the Domain Name for an email message impersonating an employee of the Complainant and attempting to redirect funds. It can safely be inferred that this was the reason for registering the Domain Name. Thus, the Panel finds bad faith in the registration and use of the Domain Name within the meaning of the Policy. The Respondent’s conduct in obscuring its identity and avoiding a response to the Complainant and the Center further supports this finding.
The Panel concludes that the Complainant has established the third element of the Complaint, bad faith.
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, <carlatl.com>, be transferred, as requested, to the Complainant CalAtlantic Title, Inc.
W. Scott Blackmer
Sole Panelist
Date: November 6, 2019