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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ameriquest Mortgage Company v. Ling Shun Shing
Case No. D2003-0294
1. The Parties
The Complainant is Ameriquest Mortgage Company, C/O Rick Davies, Counsel, Legal Department, Orange, California, United States of America, represented by Buchalter Nemer Fields & Younger of United States of America.
The Respondent is Ling Shun Shing, Shanghai, People’s Republic of China.
2. The Domain Name and Registrar
The disputed domain name <amerquest.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 15, 2003. On April 16, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On April 16, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing its contact details therefor. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 22, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was May 12, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2003.
The Center appointed Mark Min-Jen Yang as the sole panelist in this matter on May 26, 2003. 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 Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties (taking note of the Respondent’s default in responding to the Complaint).
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondent’s response.
4. Factual Background
The Respondent registered the domain name <amerquest.com> with the Registrar on October 11, 2002.
In the Complaint (paragraphs under Section V, at pages 6-15), and the associated Annexes, the Complainant submitted evidence and contentions of various factual and legal conclusions based on such evidence.
Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. The Panel’s position on some contentions is amplified below (in Discussion and Findings).
In the absence of any evidence to the contrary submitted by the Respondent, this
Panel accepts much (but not necessarily all) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence, as set out in the Complaint. The Panel, for example, does not render an opinion whether the trademark AMERIQUEST is famous under the Lanham Act. The Panel does accept enough of the Complainant’s evidence and contentions, to render its decision below.
Since January 1995, the Complainant has continuously and substantially used the "AMERIQUEST MORTGAGE" mark in connection with its mortgage banking, lending, and brokerage services (hereinafter, "Services"). Ameriquest owns the following US service mark registrations: (1) #2,224,856 for "AMERIQUEST MORTGAGE CORPORATION"; (2) #2,551,714 for "AMERIQUEST MORTGAGE COMPANY"; (3) #2,551,713 for "AMERIQUEST"; (4) #2,620,964 for "AMERIQUEST MORTGAGE"; and, (5) #2,608,552 for "AMERIQUEST MORTGAGE COMPANY AND DESIGN", all for its Services. The Complainant also has pending U.S. service mark applications for marks containing the term "AMERIQUEST". These aforementioned marks are hereinafter "AMERIQUEST MARKS".
5. Parties’ Contentions
The Complainant alleges that the domain name, <amerquest.com>, is identical or confusingly similar to the AMERIQUEST MARKS in which the Complainant has rights, that the Respondent has no rights to or legitimate interest in the domain name, and that the domain name is registered and being used in bad faith by the Respondent. The Complainant requests the transfer to it of the domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
One requirement of fundamental due process is that a Respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a response to the Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for the Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).
Where there is default, under Rule 14(a), "the Panel shall proceed to a decision on the complaint", and under the Rule 14(b), "the Panel shall draw such inferences [from the default] as it considers appropriate". Furthermore, Rule 15(a) provides that 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 appropriate". Since the Respondent has not submitted any material and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant.
Paragraph 4(a) of the Policy sets forth three elements to be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. Each of the following three elements must be established by a Complainant:
(a) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(b) Respondent has no rights or legitimate interests in respect of the domain name; and
(c) Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Based on the uncontroverted evidence submitted by the Complainant and the facts and conclusions contended for (see Factual Background, above), the Panel finds that:
(a) the Complainant is the largest subprime lender of mortgage loans in the United States of America and is widely known for its Services, and that the Complainant reported revenues of over one billion dollars for the period 1995 to the present for sales of its Services in association with the AMERIQUEST MARKS;
(b) the Complainant has continually operated its website since 1998 to the present, at <ameriquestmortgage.com>; and
(c) the AMERIQUEST MARKS, in association with the Services, are the subject of trademark registrations and pending applications in the United States of America.
The Panel finds that the Complainant has significant rights in its trademark AMERIQUEST in the United States of America in association with the Services.
The Panel finds that the difference in spelling between "AMERIQUEST" and "amerquest" is of insufficient legal significance to distinguish the latter from the former in the marketplace context of Services, especially when considered in its world wide web aspects where a mis-typing of one character is not uncommon.
Accordingly, the Panel finds that the domain name is confusingly similar to the AMERIQUEST trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
Respondent has submitted no evidence, generally, and none under paragraph 4(c) of the Policy in particular, to support a finding of it having any rights or legitimate interests in respect of the domain name. This is sufficient for the Panel to accept the Complainant’s contention that the Respondent has no rights or legitimate interest.
Furthermore, based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions of factual and legal conclusions set out in the Complaint. In particular, the Panel finds that (a), (b) and (c) under A above, were likely known by the Respondent when it registered the domain name and that makes it very difficult, even if it had submitted evidence, for it to show it had rights or legitimate interests in the domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
Based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions set out in the Complaint. In particular, the domain name was registered in bad faith because it was done with knowledge of the Complainant’s trademark registrations of AMERIQUEST and its use of AMERIQUEST MARKS in association with its Services. Also in particular, the domain name is being used in bad faith because (according to the Complaint) the use is to divert Internet use traffic to a website, <landing.domainsponsor.com> that has gambling and other activities not related to Services, for the direct or indirect commercial gain presumably of the Respondent, all with a false association to the Complainant and its AMERIQUEST MARKS.
The Panel finds that the Respondent’s domain name has been registered and is being used in bad faith.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <amerquest.com> be transferred to the Complainant.
Mark Min-Jen Yang
Date: June 6, 2003