Ace Cash Express, Inc. v.
Ascent Info
Claim Number: FA0801001139091
PARTIES
Complainant is Ace Cash Express, Inc. (“Complainant”), represented by Kay
Lyn Schwartz, of Gardere Wynne Sewell, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ace-cashadvance.com>, registered
with Domaindiscover.
PANEL
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.
Tyrus R. Atkinson, Jr., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on January 18, 2008; the
National Arbitration Forum received a hard copy of the Complaint on January 22, 2008.
On January 21, 2008, Domaindiscover confirmed by e-mail to the
National Arbitration Forum that the <ace-cashadvance.com> domain name is
registered with Domaindiscover and that
the 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 24, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of February 13, 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@ace-cashadvance.com by
e-mail.
A timely Response was received on February
13, 2008. However, the Response
was deemed deficient pursuant to Rule 5 because a hard copy of the Response was
not received.
On February 18, 2008, Complainant and Respondent jointly requested a
Stay pursuant to NAF Supplemental Rule 6(b)(i).
In accordance with the Parties’ Request, the National Arbitration Forum
stayed the matter for a period of forty-five (45) days. On April 4, 2008, the Stay was lifted and the
matter was reinstated pursuant to Supplemental Rule 6(b)(ii).
On April 7, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Ace Cash Express is a leading retailer of financial services, including
check cashing, short term consumer loans, bill payment and prepaid debit card
services, and the largest owner, operator and franchisor of check cashing
stores in the
As a result of Ace Cash Express’ extensive use and promotion of the ACE
marks, the ACE marks have become widely known and recognized among consumers
throughout the
Ace Cash Express’ service mark rights in its “ACE” marks have been
uniformly recognized by previous ICANN Panels. Ace Cash Express has used
continuously, since at least as early as 1989, and is currently using, the
service mark “ACE”, as well as various other “ACE” and “ACE CASH” derivative
marks in connection with its various financial services (collectively the “ACE
marks”).
The domain name at issue, <ace-cashadvance.com>,
is identical or confusingly similar to service marks in which Ace Cash Express
has rights.
Respondent has no rights or legitimate interests in the domain name, <ace-cashadvance.com>.
The domain name was registered and is being used by Respondent in bad
faith.
B. Respondent
The Response was submitted by e-mail to the Forum. The e-mail states that Respondent has
voluntarily withdrawn the disputed domain name and is in no way interested in
the domain name any more and has no objection to transferring the said domain
to Complainant.
FINDINGS
No contested issues are present in this
case. Complainant demands that the
disputed domain name be transferred to Complainant and Respondent agrees that
the disputed domain name be transferred from Respondent to Complainant.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
In cases of this kind, where there are no
contested issues for decision, a formal analysis under the UDRP is unnecessary. Respondent does not contest any of
Complainant’s allegations regarding the <ace-cashadvance.com>
domain name. Respondent has consented
to judgment in favor of Complainant and authorized the immediate transfer of
the domain name. The Panel has decided
to forego the traditional UDRP analysis and order the immediate transfer of the
domain name. See Boehringer Ingelheim
Int’l GmbH v. Modern Ltd-Cayman Web
Dev., FA133625 (Nat. Arb. Forum Jan. 9, 2003) in which the domain name was
transferred where the respondent stipulated to the transfer. See also Malev Hungarian Airlines, Ltd. v.
Vertical Axis Inc., FA212653 (Nat. Arb. Forum Jan. 13, 2004) which held “In
this case, the parties have both asked for the domain name to be transferred to
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, FA475191 (Nat. Arb. Forum
June 24, 2005).
DECISION
Complainant having demanded that the disputed domain name be
transferred from Respondent to Complainant and Respondent having agreed to the
transfer from Respondent to Complainant and such agreement being proper under
the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ace-cashadvance.com> domain name be TRANSFERRED
from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 20, 2008
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