The Complainants are Lennar Pacific Properties Management, Inc. and Lennar Mortgage, LLC, United States of America (“United States” or “U.S.”), represented by Slates Harwell LLP, United States.
The Respondent is 杨智强 (yang zhi qiang), China.
The disputed domain names <lennarmortfage.com>, <lennarmortgafe.com>, and <lennarmottgage.com> are registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 23, 2021. On August 24, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 25, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on August 26, 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 August 31, 2021.
On August 26, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the administrative proceeding. On August 31, 2021, the Complainants confirmed their request that English be the language of the administrative proceeding. The Respondent did not comment on the language of the administrative 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 Respondent in English and Chinese of the Complaint, and the proceedings commenced on September 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 22, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2021.
The Center appointed Jonathan Agmon as the sole panelist in this matter on October 6, 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.
The Complainants are Lennar Pacific Properties Management, Inc. (“LPPM”) and Lennar Mortgage, LLC (“Lennar”). The Complainants have been offering real estate management, brokerage, development, construction, financial services, and mortgage brokerage and banking services under the LENNAR Marks since 1973. Lennar is one of American’s leading homebuilders since 1954, and has been building and selling homes in twenty-one states in the United States. In connection with the Complainants’ provision of financial services, Lennar owns and operates the domain name <lennarmortgage.com> which was registered on November 5, 2019.
LLPM is the owner and licensor, and Lennar is the licensee of the following trademark registrations (collectively, the “LENNAR Marks”):
- U.S. Trademark Registration No. 3,108,401 for LENNAR, registered on June 27, 2006;
- U.S. Trademark Registration No. 3,477,143 for LENNAR, registered on July 29, 2008;
- China Trademark Registration No. 14666601 for LENNAR registered on June 28, 2017;
- China Trademark Registration No. 23204784 for LENNAR registered on December 28, 2018; and
- China Trademark Registration No. 22542887 for LENNAR registered on February 14, 2018.
The disputed domain names <lennarmortfage.com>, <lennarmortgafe.com>, and <lennarmottgage.com> were registered on July 15, 2021, and resolve to parking pages with pay-per-click (“PPC”) links at the time of this decision.
The Complainants argue that the disputed domain names are confusingly similar to their LENNAR Marks as they are combinations of LENNAR and typosquatting variations of the word “mortgage”, which are virtually identical and/or confusingly similar to the LENNAR Marks and Lennar’s <lennarmortgage.com> domain name, which are insufficient to avoid the finding of confusingly similarity.
The Complainants also argue that the Respondent has no rights or legitimate interests in respect of the disputed domain names as the Respondent is not affiliated with or authorized by the Complainants to use any of their trademarks or register the disputed domain names, and that the Respondent is not known by the disputed domain names.
The Complainants further argue that the disputed domain names were registered and are being used in bad faith for commercial gain by creating a likelihood of confusion with the Complainants’ LENNAR Marks and the Respondent had actual knowledge of the Complainants’ trademarks at the time of registration.
The Respondent did not reply to the Complainants’ contentions.
Paragraph 11 of the Rules provides that: “(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”.
The language of the Registration Agreement for the disputed domain names is Chinese.
The Complainants requested that the language of the proceeding be English.
The Respondent did not comment on the language of the proceeding.
The Panel cites the following with approval:
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (See Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004).
The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding:
(i) the disputed domain names consists of Roman letters, rather than Chinese characters;
(ii) the disputed domain names resolve to parking pages with PPC links in the English language;
(iii) the Complainants may be unduly disadvantaged by having to conduct the proceeding in the Chinese language; and
(iv) the Respondent did not object to the Complainant’s request that English be the language of the proceeding.
Upon considering the above, the Panel determines that English be the language of the proceeding.
Paragraph 4(a)(i) of the Policy requires a complainant to show that a domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belongs to its respective owner. The Complainants have provided evidence that they own the LENNAR Marks.
The disputed domain names are a combination of the Complainants’ LENNAR Marks, and typosquatting variations of the word “mortgage” as “mortfage”, “mortgafe” and “mottgage”, and the generic Top-Level Domain (“gTLD”) “.com”.
It is established that “where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusingly similarity” for purposes of the first element (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8).
It is also established that the applicable gTLD in a domain name is viewed as a standard registration requirement and as such is usually disregarded under the first element confusing similarity test (WIPO Overview 3.0, section 1.11). The addition of a gTLD to a disputed domain name does not avoid a finding of confusing similarity as the use of a gTLD is technically required to operate a domain name (see Accor v. Noldc Inc., WIPO Case No. D2005-0016; F. Hoffmann-La Roche AG v. Macalve e-dominios S.A., WIPO Case No. D2006-0451; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; L’Oréal v Tina Smith, WIPO Case No. D2013-0820; Titoni AG v Runxin Wang, WIPO Case No. D2008-0820; and Alstom v. Itete Peru S.A., WIPO Case No. D2009-0877).
The disputed domain names consist of the Complainants’ LENNAR Marks, typosquatting variations of the word “mortgage”, and the gTLD “.com”, which in the Panel’s view does not avoid a finding of confusing similarity with the Complainants’ trademarks (see Schneider Electric S.A. v. Domain Whois Protect Service / Cyber Domain Services Pvt. Ltd., WIPO Case No. D2015-2333).
Therefore, the Panel finds that the disputed domain names are confusingly similar to the LENNAR Marks and the element under paragraph 4(a)(i) of the Policy is satisfied.
Paragraph 4(a)(ii) of the Policy requires the complainant to show that the respondent has no rights or legitimate interests in respect of the domain name. Once the complainant establishes a prima facie case that the respondent lacks rights or legitimate interests in the domain name, the burden of production shifts to the respondent to show that it has rights or legitimate interests in respect to the domain name (see WIPO Overview 3.0, section 2.1).
In the present case, the Complainants have demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain names and the Respondent has failed to assert any such rights or legitimate interests.
The Complainants submitted evidence that they did not authorize or license the Respondent to use the LENNAR Marks (see OSRAM GmbH. v. Mohammed Rafi/Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, WIPO Case No. D2015-1149; Sanofi-Aventis v. Abigail Wallace, WIPO Case No. D2009-0735).
The Complainants also submitted that the Respondent’s use of the disputed domain names resolved to parking pages with PPC links related to the Complainants’ LENNAR Marks, namely, real estate, mortgages and loan services. It is well established that the use of a domain name to host a parked page comprising PPC links may not represent a bona fide offering of goods or services where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users (see WIPO Overview 3.0, section 2.9). In this case, the Panel finds that the Respondent is not making a bona fide offering of goods or services as the PPC links on the websites at the disputed domain names appear to be competitive with the Complainants and would also mislead unsuspecting Internet users seeking the Complainants.
In addition, the evidence submitted by the Complainants show that the Respondent is not commonly known by the disputed domain names.
The Respondent did not submit a Response in the present case and did not provide any explanation or evidence to show rights or legitimate interests in the disputed domain names which is sufficient to rebut the Complainants’ prima facie case.
The Panel is therefore of the view that the Respondent has no rights or legitimate interests in respect of the disputed domain names and accordingly, paragraph 4(a)(ii) of the Policy is satisfied.
The complainant must show that the respondent registered and is using the disputed domain name in bad faith (paragraph 4(a)(iii) of the Policy). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainants have submitted evidence that at the time of the Complaint, the disputed domain names resolved to a parked page containing PPC links on the websites at the disputed domain names that appear to be competitive with the Complainants, and would likely mislead unsuspecting Internet users seeking the Complainants. It is up to the Respondent to control the content appearing on the websites under the disputed domain names. PPC links that provide links to competitors of the Complainants represent a clear indication of bad faith registration and use of the disputed domain names. In addition, there is no indication of a good faith attempt by the Respondent to prevent the offending advertising links and as discussed below the Respondent was aware of the Complainants and their trademarks when it registered the disputed domain names. See Volkswagen Aktiengesellschaft v. Robert Brodi, WIPO Case No. D2015-0299.
The Complainants also state that the Respondent has been involved in other UDRP proceedings, for instance: 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), WIPO Case No. D2021-0576, and other URDP proceedings with domain names utilizing the LENNAR Marks and the word “mortgage” which the Panel has taken into consideration. The Complainants state that the Respondent was clearly aware of the Complainants and their LENNAR Marks and that the Respondent has no connection to the LENNAR Marks. The existence of prior disputes between the Parties is an indication that the Respondent was aware of the Complainants and their trademarks and was targeting the Complainants. (See WIPO Overview 3.0, section 3.2.1, listing additional bad faith consideration factors, including, “(v) any respondent pattern of targeting marks along a range of factors, such as a common area of commerce, intended consumers, or geographic location, (vi) a clear absence of rights or legitimate interests coupled with no credible explanation for the respondent’s choice of the domain name, or (vii) other indicia generally suggesting that the respondent had somehow targeted the complainant.”)
The Respondent did not submit a Response in this proceeding which is a further indication of the Respondent’s bad faith, which has been considered by the Panel.
Based on the totality of evidence presented to the Panel, including the confusing similarity between the disputed domain names and the Complainants’ marks, the distinctive nature of the Complainants’ marks, the fact that the disputed domain names are being used for PPC links to competitive products or services, the previous case between the Parties showing that the Respondent is targeting the Complainants, and the fact that no Response was submitted by the Respondent to the Complaint, the Panel draws the inference that the disputed domain names were registered and are being used in bad faith, and accordingly, paragraph 4(a)(iii) of the Policy is 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 names, <lennarmortfage.com>, <lennarmortgafe.com> and <lennarmottgage.com> be transferred to the Complainants.
Jonathan Agmon
Sole Panelist
Date: October 20, 2021