Dollar Financial Group, Inc. v. Karnab Web Marketing Services Pvt. Ltd.
Claim Number: FA0711001111756
Complainant is Dollar Financial Group, Inc. (“Complainant”), represented by Hilary
B. Miller, 72 Zaccheus Mead Lane, Greenwich, CT 06831-3752. Respondent is Karnab Web Marketing Services Pvt. Ltd.
(“Respondent”), 303,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <moneymarthome.com>, registered with Wild West Domains, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On November 27, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 17, 2007 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@moneymarthome.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <moneymarthome.com> domain name is confusingly similar to Complainant’s MONEY MART mark.
2. Respondent does not have any rights or legitimate interests in the <moneymarthome.com> domain name.
3. Respondent registered and used the <moneymarthome.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dollar Financial Group, Inc., is one of the largest international vendors of subprime consumer loans. Since 1982, Complainant has earned over one billion dollars in sales using the MONEY MART mark in connection with its consumer financial services. Complainant holds a trademark registration for the MONEY MART mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,244,158 issued May 11, 1999). Complainant also owns registrations for several domain names incorporating its MONEY MART mark, including the <moneymart.com> and <moneymart.ca> domain names.
Respondent registered the <moneymarthome.com> domain name on
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts rights in the MONEY MART mark by virtue
of its registration of the mark with the USPTO.
The Panel finds that this registration sufficiently establishes
Complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Respondent’s <moneymarthome.com> domain name incorporates Complainant’s
entire MONEY MART mark and merely adds the generic term “home” onto the
mark. The Panel finds that the addition
of such a generic term does not sufficiently distinguish the disputed domain
name from the MONEY MART mark. In
addition, the inclusion of the generic top-level domain “.com” in the disputed
domain name is not relevant, as a top-level domain is required of all domain
names. Therefore, the Panel finds that
the <moneymarthome.com> domain
name is confusingly similar to Complainant’s MONEY MART mark under Policy ¶ 4(a)(i). See Arthur Guinness Son &
Co. (
The Panel concludes that Policy ¶ 4(a)(i)
has been satisfied.
Policy ¶ 4(a)(ii) places the initial burden on Complainant to show that Respondent lacks rights and legitimate interests in the <moneymarthome.com> domain name. Once Complainant has established a prima facie case, however, the burden shifts to Respondent to refute that showing. In the instant case, the Panel finds that Complainant has established a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent failed to submit an answer to the Complaint in
this proceeding. Respondent’s default
thus allows the Panel to presume that Respondent lacks rights and legitimate
interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Respondent’s <moneymarthome.com>
domain name resolves to a website offering short-term loans in direct
competition with Complainant, and the Panel presumes that Respondent profits
when Internet users elect to take advantage of Respondent’s services. The Panel concludes that such use does not
constitute either a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), which indicates
a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum Sept. 30, 2003)
(“Respondent's demonstrated intent to divert Internet users seeking
Complainant's website to a website of Respondent and for Respondent's benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it
is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Or. State Bar v. A Special
Day, Inc., FA 99657 (Nat. Arb.
Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of
law-related books under Complainant's name is not a bona fide offering of goods
and services because Respondent is using a mark confusingly similar to the
Complainant's to sell competing goods.”).
Complainant also asserts that Respondent is not commonly
known by the <moneymarthome.com> domain
name, which also indicates a lack of rights and legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c)(ii). The Panel agrees with this assertion, as
Respondent’s WHOIS information does not indicate that Respondent, “Karnab Web
Marketing Pvt. Ltd.,” is known by the <moneymarthome.com>
domain name, and there is no additional evidence in the record to suggest
otherwise. In addition, Complainant has
not permitted Respondent to use its MONEY MART mark for any purpose. Therefore, the Panel finds that Respondent
lacks rights and legitimate interests in the disputed domain name under Policy
¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
The Panel concludes that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant contends that Respondent registered and is using
the <moneymarthome.com> domain
name in bad faith pursuant to Policy ¶ 4(a)(iii). The disputed domain name resolves to
Respondent’s website offering consumer loans in direct competition with
Complainant’s business. The Panel finds
that this constitutes a disruption of Complainant’s business and qualifies as
bad faith registration and use under Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA
94385 (Nat. Arb. Forum
Furthermore, the Panel presumes that Respondent benefits commercially when Internet users take advantage of the loan services offered on the website that resolves from the <moneymarthome.com> domain name, which is confusingly similar to Complainant’s MONEY MART mark. Respondent is thus capitalizing on the likelihood of confusion created when users believe that Respondent’s website is somehow affiliated with Complainant. The Panel finds that this is further evidence that Respondent registered and is using the <moneymarthome.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
The Panel concludes that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <moneymarthome.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 2, 2008
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