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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Jack M. Guttentag v. Lighthouse Mortgage

Case No. D2007-1287

1. The Parties

Complainant is Jack M. Guttentag, represented by Akin Gump Strauss Hauer & Feld LLP, Washington, DC, United States of America.

Respondent is Lighthouse Mortgage, San Antonio, Texas, United States of America.

2. The Domain Name and Registrar

The disputed domain name <mortgageprofessor.com> is registered with TierraNet d/b/a DomainDiscover.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 29, 2007. On September 3, 2007, the Center transmitted by email to TierraNet d/b/a DomainDiscover a request for registrar verification in connection with the domain name at issue. On September 3, 2007, TierraNet d/b/a DomainDiscover transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on September 7, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 27, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 1, 2007.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on October 11, 2007. 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.

On October 26, 2007, the Panel caused the Center to issue a Procedural order requesting additional relevant material in support of the statements in the Complaint.

On November 12, 2007, Complainant submitted its Supplemental Evidence. Respondent did not submit any response to this Supplemental Evidence.

4. Factual Background

Complainant is a Professor of Finance Emeritus (formerly the Jacob Safra Professor of International Banking) at the Wharton Business School of the University of Pennsylvania. Prior to his professorship, Complainant was the Chief of the Domestic Research Division of the Federal Reserve Bank of New York, served as one of the senior staff members of the National Bureau of Economic Research, and was the managing editor of the Journal of Finance and Housing Finance Review.

Complainant has been for many years involved in the home loan/financing and mortgage business. In 1998, Complainant registered the <mtgprofessor.com> domain name and began developing his “Mortgage Professor” web site, which provide viewers with an array of information, links, hints, questions and answers, and other “tools” regarding mortgages, lenders and home financing.

In addition, since 1998, Complainant has been offering a syndicated on-line column on the subject of mortgages and home finance under the mark ASK THE MORTGAGE PROFESSOR. Since 1999, Complainant has been writing a regular column titled “MORTGAGE PROFESSOR” on the subject of mortgages and home finance, which is syndicated and circulated nationally in various magazines newspapers and other publications. In his column, Complainant answers various questions received from the general public, and addresses a wide range of issues related to mortgages and loans, home insurance, interest rates and issues pertaining to mortgage fraud.

Complainant owns the following United States trademark registrations for his MORTGAGE PROFESSOR and ASK THE MORTGAGE PROFESSOR marks:

Registration No. 3,165,226 for the mark MORTGAGE PROFESSOR, registered October 31, 2006, for use in connection with “Class 16: syndicated columns in newspapers, magazines and periodical publications on the subject of home finance;” and

Registration No. 2,326,939 for the mark ASK THE MORTGAGE PROFESSOR, registered March 7, 2000, for “Class 42: computer services, namely, providing a syndicated online column in electronic publications and websites on the subject of home finance.”

The disputed domain name was registered on August 9, 2000.

Prior to August 2000, Complainant’s columns were licensed under the mark ASK THE MORTGAGE PROFESSOR to many different newspapers and other publications nationwide in print and on-line. Complainant submitted supplemental evidence showing that he was widely recognized under the mark the MORTGAGE PROFESSOR prior to August 2000.

5. Parties’ Contentions

A. Complainant

Complainant contends that the domain name is confusingly similar to Complainant’s MORTGAGE PROFESSOR and ASK THE MORTGAGE PROFESSOR trademarks, that Respondent lacks any right or legitimate interest in the domain name, and that Respondent has registered and used the domain name in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in Paragraph 4(a) of the Policy have been satisfied:

(i) the domain name in dispute 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 with respect to the domain name; and

(iii) the domain name has been registered and used in bad faith.

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”.

A. Identical or Confusingly Similar

The disputed domain name <mortgageprofessor.com> incorporates Complainant’s registered MORTGAGE PROFESSOR trademark in its entirety and incorporates the dominant portion of Complainant’s ASK THE MORTGAGE PROFESSOR trademark.

Accordingly, the Panel finds that the domain name is identical and confusingly similar to Complainant’s trademarks.

B. Rights or Legitimate Interests

Complainant contends that Respondent is not affiliated or related to Complainant in any way, nor is Respondent licensed by Complainant or otherwise authorized to use the MORTGAGE PROFESSOR or ASK THE MORTGAGE PROFESSOR marks.

Respondent is not generally known by the domain name and has not acquired any trademark or service mark rights in that name or mark.

The domain name resolves to a holding page website with links to various services not connected with mortgage-related services.

Complainant has established a prima facie case that Respondent lacks rights or legitimate interests. Respondent has not rebutted Complainant’s contentions.

The Panel finds that Respondent has no rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or

(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website 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 Respondent’s website or location of a product or service on Respondent’s website or location.

It should be noted that the circumstances of bad faith are not limited to the above.

Complainant contacted Respondent on several occasions by telephone in an effort to obtain transfer of the domain name. Respondent initially agreed to sell the domain name to Complainant and indicated that he would “check his files” to confirm the sales price. However, Respondent failed to provide a sales price and refused to provide any basis for his claim to the domain name, despite being informed of Complainant’s trademark rights. The most recent telephone conversation took place in July/August 2007, during which Respondent confirmed that he would consider Complainant’s offer of $3,000 for the domain name. Respondent, however, failed to return Complainant’s telephone calls.

On the basis of the supplemental evidence submitted by Complainant, it is highly likely that Respondent was aware of Complainant’s trademarks at the time Respondent registered the domain name. Respondent has certainly been made aware of those rights since registering the domain name during telephone conversations with Complainant. Respondent has made no attempt to develop a website at the domain name relating to mortgage services in the seven years since obtaining the domain name in 2000.

Respondent’s refusal to transfer the domain name and indication that he would consider Complainant’s offer of $3,000, indicates that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name.

The Panel finds that Respondent has registered and used the domain name in bad faith.

7. Decision

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 <mortgageprofessor.com> be transferred to the Complainant.


Lynda J. Zadra-Symes
Sole Panelist

Dated: November 26, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1287.html

 

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