DECISION

LendingTree, Inc. v. A+ Loans

Claim Number:  FA0306000165130

PARTIES

Complainant is LendingTree, Inc., Charlotte, NC (“Complainant”) represented by John C. McElwaine, of Nelson Mullins Riley & Scarborough, LLP.  Respondent is A+ Loans, Alderson, WV (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com>, registered with Register.Com.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 23, 2003; the Forum received a hard copy of the Complaint on June 27, 2003.

On June 25, 2003, Register.Com, Inc. confirmed by e-mail to the Forum that the domain names <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> are registered with Register.Com and that Respondent is the current registrant of the names. Register.Com, Inc. has verified that Respondent is bound by the Register.Com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On July 1, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 21, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@lendigntree.com, postmaster@lendningtree.com, postmaster@ ledningtree.com, and postmaster@lndingtree.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On July 30, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Judge Harold Kalina (Ret.) as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names are confusingly similar to Complainant’s LENDINGTREE mark.

2. Respondent does not have any rights or legitimate interests in the <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names.

3. Respondent registered and used the <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant is an on-line lending service that matches borrowers in the field of consumer and mortgage lending.  Potential borrowers can apply for loans on-line and Complainant provides the applicant with up to four offers from potential lenders.  Complainant holds the registration for the <lendingtree.com> domain name and uses it in conjunction with these services.  Complainant owns the LENDINGTREE mark, which was registered with the U.S. Patent and Trademark Office on July 27, 1999 (Reg. No. 2,265,733).  Complainant has used the LENDINGTREE mark in commerce since 1998.  An October 2002 Nielsen/Net Ratings survey ranked the <lendingtree.com> website the top site in the category of on-line “loan brands or channels.”

Respondent registered the disputed domain names between April 14, 2000 and August 6, 2002.  In early 2003, each of the disputed domain names linked to Respondent’s website, which offers on-line loan application services similar to Complainant.  As of June 6, 2003 the <lndingtree.com>, <ledningtree.com>, and <ledingtree.com> domain names were still linked to the competing website.  As of July 22, 2003 the <lendigntree.com> and <lendningtree.com> domain names were inactive.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations 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.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

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

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

Identical and/or Confusingly Similar

Complainant has established rights in the LENDINGTREE mark through use in commerce and registration with the U.S. Patent and Trademark Office.

Respondent’s <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names are confusingly similar to Complainant’s LENDINGTREE mark because the disputed domain names merely misspell the word “lending.”  Minor misspellings of the LENDINGTREE mark will not circumvent Complainant’s rights in the mark and will not prevent a finding of confusing similarity pursuant to Policy ¶ 4(a)(i).  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).

Furthermore, the fact that the disputed domain names link to a website that offers services similar to Complainant’s is additional evidence that the disputed domain names are confusingly similar to the LENDINGTREE mark.  See Slep-Tone Entm't Corp. v. Sound Choice Disc Jockeys, Inc., FA 93636 (Nat. Arb. Forum Mar. 13, 2000) (stating that “likelihood of confusion is further increased by the fact that the Respondent and [Complainant] operate within the same industry”); see also Vivid Video, Inc. v. Tennaro a/k/a Vivid Revolution, FA 126646 (Nat. Arb. Forum Nov. 14, 2002) (finding that any distinctiveness resulting from Respondent’s addition of a generic word to Complainant’s mark in a domain name is less significant because Respondent and Complainant operate in the same industry).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Due to Respondent’s failure to dispute the allegations in the Complaint, the Panel presumes that Respondent lacks rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).  See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Furthermore, the WHOIS information for the disputed domain names does not establish that Respondent is commonly known by any of the domain names.  Also, nothing in the record establishes that Respondent has been given authority by Complainant to use the LENDINGTREE mark.  Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain names.  See Tercent, Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

In addition, Respondent is using the disputed domain names to redirect Internet users to Respondent’s website that offers services that compete with Complainant.  Respondent’s use of the confusingly similar domain names to redirect confused Internet users to a website that competes with Complainant is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Clear Channel Communications, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that Respondent, as a competitor of Complainant, had no rights or legitimate interests in a domain name that utilized Complainant’s mark for its competing website); see also Yahoo!, Inc. v. Web Master a/k/a MedGo, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that Respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with Complainant, was not a bona fide offering of goods or services).

Moreover, Respondent has engaged in the practice of “typosquatting.”  Respondent intentionally registered the disputed domain names, which are misspellings of Complainant’s mark, with the purpose of redirecting Internet users who attempt to access Complainant’s website but misspell the mark.  Respondent’s “typosquatting” is evidence that Respondent lacks rights or legitimate interests in the disputed domain names.  See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark); see also Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

The Panel infers that Respondent had actual or constructive knowledge of Complainant’s mark because Respondent was in the same industry as Complainant, the LENDINGTREE mark was registered with the U.S. Patent and Trademark Office, and the mark has been used in commerce since 1998.  Registration of domain names, despite the knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Digi Int’l, Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof”).

Furthermore, Respondent has used the disputed domain names to disrupt

Complainant’s business.  Both parties provide loan application services on-line.  Respondent has registered the disputed domain names with the intent to divert Complainant’s potential customers to Respondent’s competing website.  Respondent’s use of the confusingly similar domain names to divert customers to its competing website is evidence of bad faith pursuant to Policy ¶ 4(b)(iii).  See Gen. Media Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) (finding bad faith where a competitor of Complainant registered and used a domain name confusingly similar to Complainant’s PENTHOUSE mark to host a pornographic web site); see also Clear Channel Communications, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding evidence of bad faith use and registration where Respondent and Complainant both operated in the highly regulated field of radio broadcasting and Respondent registered a domain name incorporating Complainant’s call letters).

Finally, Respondent has engaged in the practice of “typosquatting.”   Respondent’s conduct is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting, however, is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Sports Auth. Mich., Inc. v. Elias Skander d/b/a Web Registration Service, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the “typosquatted” domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” evidence of bad faith registration and use).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <lendigntree.com>, <lendningtree.com>, <ledningtree.com>, <ledingtree.com>, and <lndingtree.com> domain names be TRANSFERRED from Respondent to Complainant.

Judge Harold Kalina (Ret.), Panelist

Dated:  August 13, 2003

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