DECISION

Credit-Based Asset Servicing And Securitization LLC and Litton Loan Servicing LP v. BadMortgage.org a/k/a Stop Litton Loan Now

Claim Number:  FA0308000180702

PARTIES

Complainants are Credit-Based Asset Servicing and Securitization LLC and Litton Loan Servicing LP, New York, NY (“Complainants”) represented by James Rosenfeld, of Davis Wright Tremaine LLP.  Respondent is BadMortgage.org a/k/a Stop Litton Loan Now, Clinton Township, MI (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net>, registered with Enom, Inc.

PANEL

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

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainants submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 7, 2003; the Forum received a hard copy of the Complaint on August 8, 2003.

On August 7, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain names <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net> are registered with Enom, Inc. and that Respondent is the current registrant of the names. Enom, Inc. has verified that Respondent is bound by the Enom, 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 August 18, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 8, 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@c-bass.org, postmaster@c-bass.info, postmaster@littonloan.org, postmaster@littonloan.info and postmaster@littonloan.net 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 September 22, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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

Complainants request that the domain names be transferred from Respondent to Complainants.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net> domain names are confusingly similar to Complainants’ C-BASS and LITTON LOAN SERVICING LP marks.

2. Respondent does not have any rights or legitimate interests in the <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net> domain names.

3. Respondent registered and used the <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net> domain names in bad faith.

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

FINDINGS

Complainant Credit-Based Asset Servicing And Securitization LLC (“C-BASS”) operates a business specializing in the purchasing, servicing and securitizing of credit-sensitive residential mortgages. This Complainant owns the C-BASS mark in the United States (registered on August 10, 1999 as Reg. No. 2,269,433) and has used it to denote its financial services since 1996.

Complainant Litton Loan Servicing LP (“Litton Loan”) is a wholly owned subsidiary of C-BASS and operates under the LITTON LOAN SERVICING LP mark. Under this mark, Litton Loan has serviced approximately 155,000 mortgages and has achieved the highest Special and Subprime Servicer Rating from Moody’s Investors Service, Standard & Poor’s and Fitch Ratings. Litton Loan has used its LITTON LOAN SERVICING LP mark since 1998.

Complainants maintain a web presence at the <c-bass.com> and the <littonloan.com> domain names. The former domain name receives approximately 1,000 hits per month, while the later has approximately 16,000 log-ins per month. Complainants have invested hundreds of thousands of dollars in promoting their marks.

Respondent registered the <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net> domain names on June 28, 2003, without license or authorization to use Complainants’ marks for any purpose. Respondent currently uses each of the disputed domain names to redirect Internet users to a webpage sponsored by Southeast Tennessee Legal Services, which provides information on lawsuits that exemplify legal “predatory practices.” Of note, Complainant Litton Loan is the primary defendant in one of these actions, and the website attempts to solicit additional plaintiffs against Litton Loan.

On July 31, 2003, Complainant sent a cease-and-desist letter to Respondent requesting transfer of the disputed domain names. A Mr. Bayer replied with the threat that he had “just begun to work on this group of companies” and that he could do “much, much worse than this and plan[s] to.” Respondent also noted that it was a “Domain Broker and licensed reseller” of domain names and “demand[ed] remuneration” for the disputed domain names, stating that it would expect to be “well compensated” for any transaction between the parties. Within a week of this email, Mr. Bayer called James Schneider, Senior Vice President of C-BASS stating that he was willing to entertain an offer on the disputed domain names and that if no offer was forthcoming Complainant was “going down.”

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 C-BASS has established rights in the C-BASS mark through registration of the mark with the U.S. Patent and Trademark Office, while Complainant Litton Loan has established rights in the LITTON LOAN SERVICING LP mark through proof of secondary meaning associated with the mark due to continuous and widespread use of the mark in commerce. See McCarthy on Trademarks and Unfair Competition, § 25:74.2 (4th ed. 2002) (The ICANN dispute resolution policy is “broad in scope” in that “the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice” to support a domain name Complaint under the Policy); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”); see also Vertical Solutions Mgmt., Inc. v. webnet-mktg., inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).

Respondent’s <c-bass.org> and <c-bass.info> domain names are identical to Complainant’s C-BASS mark, as the only difference between these domain names and Complainant’s registered mark is the inconsequential addition of the top-level domain names “.org” and “.info.” See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

Respondent’s <littonloan.org>, <littonloan.info> and <littonloan.net> domain names are confusingly similar to Complainant’s LITTON LOAN SERVICING LP mark. Each of these domain names has appropriated the distinctive LITTON LOAN feature of Complainant’s common-law mark while discarding the SERVICING LP portion of the mark. The elimination of one portion of Complainant’s mark is insufficient to distinguish the domain names from the mark. See Nikon, Inc. v. Technilab, Inc., D2000-1774 (WIPO Feb. 26, 2000) (holding that confusing similarity under the Policy is decided upon the inclusion of a trademark in the domain name rather than upon the likelihood of confusion test under U.S. trademark law); see also Hammond Suddards Edge v. Westwood Guardian Ltd., D2000-1235 (WIPO Nov. 6, 2000) (finding that the <hammondsuddards.net> domain name is essentially identical to Complainant's HAMMOND SUDDARDS EDGE mark, as the name “Hammond Suddards” identifies Complainant independently of the word “Edge”).

Accordingly, the Panel finds that the <c-bass.org> and <c-bass.info> domain names are identical to Complainant’s C-BASS mark, and that the <littonloan.org>, <littonloan.info> and <littonloan.net> domain names are confusingly similar to Complainant’s LITTON LOAN SERVICING LP mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

The evidence before the Panel demonstrates that Respondent was aware of Complainants and their rights in the C-BASS and LITTON LOAN SERVICING LP marks before it registered the disputed domain names. Respondent, an acknowledged domain name broker, has twice attempted to negotiate the sale of its domain name registrations to Complainant. Respondent cannot have rights or legitmate interests in domain names that it registered with the clear intent of selling to Complainant. Respondent’s use of the disputed domain names to redirect Internet users to a webpage that actively seeks additional plaintiffs in a suit against Complainant Litton Loan, which the Panel infers was done in order to pressure Complainants into purchasing the disputed domain name, bolsters this conclusion. See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum March 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark”); see also Skipton Bldg. Soc’y v. Colman, D2000-1217 (WIPO Dec. 1, 2000) (finding no rights in a domain name where Respondent offered the infringing domain name for sale and the evidence suggests that anyone approaching this domain name through the worldwide web would be "misleadingly" diverted to other sites).

The Panel finds that the above analysis establishes a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, and as Respondent has failed to supply the Panel with a Response, Complainant prevails on this element of the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name).

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net> domain names under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent’s statement to Complainants that it expected to be “well compensated” for the disputed domain names and its telephone threat to Complainant that, if it didn’t agree to purchase the disputed domain name registrations, Respondent would take adverse steps against Complainant both support the conclusion that Respondent intends to sell its domain name registrations to Complainant. As Respondent’s communications with Complainant also support the inference that Respondent had actual knowledge of Complainants’ rights in the C-BASS and LITTON LOAN SERVICING LP marks at the time that it registered the disputed domain names, the Panel concludes that sale of these registrations to Complainant was Respondent’s primary purpose in registering the disputed domain names. Thus, Respondent’s behavior evidences bad faith use and registration pursuant to Policy ¶ 4(b)(i). See Ingram Micro Inc v. Noton Inc., D2001-0124 (WIPO Mar. 6, 2001) (finding bad faith registration and use where Respondent attempted to blackmail Complainant into buying the disputed domain names with threats of exposure to the media and adverse publicity to Complainant’s employees and customers); see also Tech. Prop., Inc v. Hussain, FA 95411 (Nat. Arb. Forum Sept. 14, 2000) (finding bad faith where Respondent verbally offered the domain names for sale for $2,000).

The Panel thus finds that Respondent registered and used the <c-bass.org>, <c-bass.info>, <littonloan.org>, <littonloan.info> and <littonloan.net> domain names in bad faith, and that Policy ¶ 4(a)(iii) is 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 <c-bass.org> and <c-bass.info> domain names be TRANSFERRED from Respondent to Credit-Based Asset Servicing And Securitization LLC,  and that the <littonloan.org>, <littonloan.info> and <littonloan.net> domain names be TRANSFERRED from Respondent to Litton Loan Servicing LP.

John J. Upchurch, Panelist

Dated:  September 29, 2003

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