Checksmart Financial Company v. KWEB Mktg Services P Ltd
Claim Number: FA0712001119574
Complainant is Checksmart Financial Company (“Complainant”), represented by Susan
D. Rector, of Schottenstein, Zox & Dunn Co., L.P.A.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <checksmartloans.com>, registered with Wild West Domains, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 18, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 7, 2008 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@checksmartloans.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 <checksmartloans.com> domain name is confusingly similar to Complainant’s CHECKSMART mark.
2. Respondent does not have any rights or legitimate interests in the <checksmartloans.com> domain name.
3. Respondent registered and used the <checksmartloans.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Checksmart Financial Company, provides a variety
of consumer financial goods and services including: check cashing, bill payment
services and loan financing. Complainant
has continuously conducted business and advertised these goods and services
under its CHECKSMART mark since
Respondent’s <checksmartloans.com> domain name
was registered 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 has established trademark rights in the
CHECKSMART mark pursuant to Policy ¶ 4(a)(i) through
registration of the mark with USPTO. See Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
In addition, the Panel finds that Complainant has
established common law rights in the CHECKSMART mark pursuant to Policy ¶ 4(a)(i) through its history of use of the CHECKSMART mark in
its business operations and advertisements.
Complainant’s CHECKSMART trademark registration record indicates that
Complainant first used the CHECKSMART mark in commerce on
The Panel finds Respondent’s <checksmartloans.com> domain name is confusingly similar to Complainant’s CHECKSMART mark pursuant to Policy ¶ 4(a)(i) because Respondent’s domain name fully incorporates the CHECKSMART mark in combination with a descriptive term. In addition, generic top-level domain names such as “.com” are considered irrelevant in evaluating whether a disputed domain name is confusingly similar to a mark. See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied); see also Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights
or legitimate interests in the <checksmartloans.com> domain
name. Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to prove that it does have rights
or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has
established a prima facie case. Moreover, due to Respondent’s failure to
respond to the Complaint, the Panel assumes that Respondent does not have
rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
Respondent’s <checksmartloans.com> domain name
resolves to a website which contains links for goods and services that directly
compete with Complainant’s business. The
Panel finds Respondent’s use of the disputed domain name, which is confusingly
similar to Complainant’s CHECKSMART mark, to divert Internet users interested
in Complainant’s products to a website that contains links for competing goods
and services is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the
disputed domain name pursuant to Policy ¶ 4(c)(iii). See
Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting
customers, who are looking for products relating to the famous SEIKO mark, to a
website unrelated to the mark is not a bona
fide offering of goods or services under Policy ¶ 4(c)(i),
nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also 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).”).
Additionally, the record and WHOIS information indicates no
evidence suggesting Respondent is commonly known by the <checksmartloans.com>
domain name. There is also no
evidence in the record that Respondent is authorized to use Complainant’s
mark. Thus, the Panel finds Respondent
has not established rights or legitimate interests in the <checksmartloans.com>
domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <checksmartloans.com> domain
name, which is confusingly similar to Complainant’s CHECKSMART mark, to direct
Internet users to Respondent’s website which contains links to goods and
services that compete with Complainant’s business. The Panel finds that such use constitutes
disruption of Complainant’s business and is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii). See
Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
In addition, Respondent
is using the <checksmartloans.com> domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) because Respondent is using Complainant’s
CHECKSMART mark to attract Internet users to a website that contains links for
goods and services that compete with Complainant’s. The Panel finds that this conduct is evidence
that Respondent is attempting to profit by giving the impression of being
affiliated with Complainant. See Am.
Univ. v. Cook, FA 208629 (Nat. Arb. Forum
Dec. 22, 2003) (“Registration and use of a domain name that incorporates
another's mark with the intent to deceive Internet users in regard to the
source or affiliation of the domain name is evidence of bad faith.”); see also 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).”).
The Panel finds 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 <checksmartloans.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 23, 2008
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