Moneytree, Inc. v. Ascent Info
Claim Number: FA0712001122981
Complainant is Moneytree, Inc. (“Complainant”), represented by Kathleen
T. Petrich, of Graham & Dunn PC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <moneytree-paydayloan.com>, registered with Domaindiscover.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 20, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 26, 2007.
On December 21, 2007, Domaindiscover confirmed by e-mail to the National Arbitration Forum that the <moneytree-paydayloan.com> domain name is registered with Domaindiscover and that Respondent is the current registrant of the name. Domaindiscover has verified that Respondent is bound by the Domaindiscover registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 2, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 22, 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 firstname.lastname@example.org by e-mail.
An untimely Response was received by e-mail on January 27, 2008. The Response was deemed deficient pursuant to ICANN Supplemental Rule 5 because it was received after the deadline.
On January 24, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <moneytree-paydayloan.com> domain name is confusingly similar to Complainant’s MONEY TREE mark.
2. Respondent does not have any rights or legitimate interests in the <moneytree-paydayloan.com> domain name.
3. Respondent registered and used the <moneytree-paydayloan.com> domain name in bad faith.
B. Respondent contends that it never intended to infringe upon Complainant’s rights, or mislead or create confusion among customers searching for Complainant’s services. In response to the Complaint, Respondent has voluntarily withdrawn the content previously posted to the website that resolved from the <moneytree-paydayloan.com> domain name, and consents to transferring registration of the disputed domain name to Complainant.
Complainant, Moneytree, Inc. is a consumer lending service,
Respondent registered the <moneytree-paydayloan.com> domain name on October 7, 2007. Respondent has used the website that resolves from the disputed domain name to advertise services competing with Complainant’s business.
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."
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.
Preliminary Issue: Deficient Response
Respondent submitted a Response in electronic form after the Response deadline. Thus, the Response is deemed deficient pursuant to ICANN Rule 5. Since the Panel has sole discretion as to the amount of weight given to the Response, the Panel has decided to consider the Response since it provides statements that ultimately help resolve the dispute. See Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist); see also Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000) (finding that a panel may consider a response which was one day late, and received before a panelist was appointed and any consideration made); see also Gaiam, Inc. v. Nielsen, FA 112469 (Nat. Arb. Forum July 2, 2002) (“In the interest of having claims decided on the merits and not by default and because Complainant has not been prejudiced in the presentation of its case by the late submission, Respondent’s opposition documents are accepted as timely.”).
Preliminary Issue: Consent to Transfer the Disputed Domain Name
Respondent states in its Response that it never intended to infringe upon Complainant’s rights, or mislead or create confusion among customers searching for Complainant’s services. Instead, Respondent has agreed to transfer registration of the <moneytree-paydayloan.com> domain name to Complainant. In accordance with both parties’ wishes, the Panel has decided to forego the traditional UDRP analysis and order the immediate transfer of the <moneytree-paydayloan.com> domain name. See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <moneytree-paydayloan.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
February 7, 2008
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