Dollar Financial Group, Inc. and National Money Mart Company v. None and Abidemi Amao
Claim Number: FA0807001216704
Complainants are Dollar Financial Group, Inc. and National
Money Mart Company (collectively “Complainant”), represented by Hilary
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <monymartca.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 4, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 25, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <monymartca.com> domain name is confusingly similar to Complainant’s MONEY MART mark.
2. Respondent does not have any rights or legitimate interests in the <monymartca.com> domain name.
3. Respondent registered and used the <monymartca.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dollar Financial Group, Inc., and its wholly
owned Canadian subsidiary, National Money Mart Company, are international
vendors of subprime consumer loans, offering the most short-term consumer loans
Respondent’s <monymartca.com> domain name was
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.
The Panel finds that Complainant has sufficiently
established rights in the MONEY MART mark pursuant to Policy ¶ 4(a)(i) through
registration of the mark with the USPTO.
The <monymartca.com> domain name contains a
close misspelling of Complainant’s MONEY MART mark, omitting the “e” in
“MONEY,” and incorporates the country-code identifier “ca” for Canada, a
country in which Complainant operates heavily.
The disputed domain name is likewise similar to Complainant’s
<moneymart.ca> domain name, adding instead the generic top-level domain
(“gTLD”) “.com.” It is well-established
that the inclusion of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See
Trip Network Inc. v. Alviera, FA
914943 (Nat. Arb. Forum
The Panel concludes that Complainant has established Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first demonstrate
a prima facie case that Respondent
lacks rights and legitimate interests in the disputed domain name. See VeriSign
Inc. v. VeneSign
However, lacking a response from Respondent, the Panel presumes that Respondent has no rights or legitimate interests in the disputed domain name. Nonetheless, the Panel will examine the record in consideration of the factors listed under Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
There is nothing in the record, including the WHOIS information, that indicates that Respondent is or ever was commonly known by the disputed domain name. Without any additional evidence, the Panel finds that Respondent is not commonly known by the <monymartca.com> domain name pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there is no evidence in the record indicating that the respondent is commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name).
Complainant asserts that the disputed domain name is being
used in a phishing scheme. A phishing scheme
is generally defined as “the use of e-mails, pop-ups or other methods to trick
Internet users into revealing credit cards, passwords, social security numbers
and other personal information to the ‘phishers’ who intend to use such
information for fraudulent purposes.” Juno
Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum
The Panel concludes that Complainant has established Policy ¶ 4(a)(ii).
The disputed domain name not only resolves to a website
fraudulently mimicking Complainant’s own website at the <moneymart.ca>
domain name, but it contains links to direct competitors of Complainant. The Panel finds this to establish
Respondent’s bad faith registration and use of the disputed domain name
pursuant to Policy ¶ 4(b)(iii). See Instron
Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding
that the respondent registered and used the disputed domain names in bad faith
pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate
websites that compete with Complainant’s business); see also Am. Online, Inc. v.
Tapia, FA 328159 (Nat. Arb. Forum
Additionally, the Panel presumes that Respondent is
attempting to commercially benefit from its confusingly similar website linked
to the disputed domain name, by either earning referral fees of some sort
through the links to direct competitors or Complainant’s, or through the
information that could be fraudulently obtained from current and potential future
customers of Complainant. As a result,
the Panel finds this to be further evidence of Respondent’s bad faith
registration and use of the <monymartca.com> domain name pursuant
to Policy ¶ 4(b)(iv). See
Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For
And finally, having found that Respondent is using the
disputed domain name as part of a phishing scheme, the Panel considers this to
be additional evidence of Respondent’s bad faith pursuant to Policy ¶
4(a)(iii). See Wells Fargo & Co.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <monymartca.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: September 12, 2008
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