The Complainant is Priority Lending Mortgage Corp., Santa Rosa, California, of the United States of America, represented by BEYERS|COSTIN, Santa Rosa, California, , of the United States of America.
The Respondent is Marc N. Laird, Bellaire, of the United States of America.
2. The Domain Name and Registrar
The disputed domain name <prioritylending.com> is registered with Domain
Registration Services dba dotEarth.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 2, 2006. On May 2, 2006, the Center transmitted by email to Domain Registration Services dba dotEarth.com a request for registrar verification in connection with the domain name at issue. On May 4, 2006, Domain Registration Services dba dotEarth.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on May 16, 2006. The Center verified that the Complaint together with the amendment to 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 May 10, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 30, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s of default on May 31, 2006.
The Center appointed Sandra J. Franklin as the sole
panelist in this matter on June 7, 2006. 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.
4. Factual Background
Since March of 2003, Complainant has been using the
Service Mark PRIORITY LENDING to identify its consumer lending, mortgage lending,
and real estate brokerage services. It did not file an application for registration
of the trademark, however, until 2006. Respondent registered the domain name
<prioritylending.com> in February of 2000. Respondent is not currently
using the domain name for any purpose.
5. Parties’ Contentions
A. Complainant contends:
1. Respondent’s <prioritylending.com> domain name is identical to Complainant’s PRIORITY LENDING mark.
2. Respondent does not have any rights or legitimate interests in the <prioritylending.com> domain name.
3. Respondent registered and used the <prioritylending.com> domain name in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
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.
A. Identical or Confusingly Similar
The Panel finds that Complainant has established rights in the mark PRIORITY LENDING through commercial use since 2003, and that the domain name <prioritylending.com> is indeed confusingly similar to the mark.
B. Rights or Legitimate Interests
Complainant has alleged, and Respondent confirmed in email correspondence, that it is not using the domain name <prioritylending.com> in any way. Based on the case file, the Panel finds that Respondent has no rights or legitimate interests in the domain name <prioritylending.com>.
C. Registered and Used in Bad Faith
Complainant has failed to meet its burden of proof that Respondent registered the domain name <prioritylending.com> in bad faith. Indeed, it’s difficult to see how Respondent could have registered in bad faith in 2000, when Complainant did not begin using the mark PRIORITY LENDING until 2003. Complainant cites precedent for the argument that passive holding is enough to establish bad faith registration and use, such as Walsin Technology Corp. v. Walsin Net Technology Inc., Nat. Arb. Forum FA0010000095766 (December 1995). Complainant fails to note the distinguishing feature of that case, along with other precedent on bad faith passive use, namely that Complainant’s trademark rights were in existence before Respondent’s domain name registration in those cases. That is not the case in the current dispute.
Furthermore, Complainant failed to allege any of the 4 listed indicators of bad faith found in Policy paragraph 4(b). There is no allegation or evidence of registration for the purpose of resale. There is no allegation or evidence of a pattern of bad faith on the part of Respondent. There is no allegation or evidence of an intent to disrupt Complainant’s business. There is no allegation or evidence of Respondent obtaining a commercial gain by creating a likelihood of confusion with Complainant’s mark.
While Complainant may have other recourse against Respondent, Complainant has
not met its burden here under the Policy. See Netgrocer, Inc. v. Anchor,
Nat. Arb. Forum FA0002000094207 (April 2000).
7. Decision
For all the foregoing reasons, the Complaint is denied.
Sandra J. Franklin
Sole Panelist
Dated: June 16, 2006
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