Claim Number: FA1002001308115
Complainant is Cottonwood Financial Ltd. (“Complainant”), represented by Brennan
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americascashstorecom.com>, registered with Godaddy.com, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 15, 2010. With its Complaint, Complainant also chose to proceed entirely electronically under the new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) by submitted an “opt-in” form available on the Forum’s website.
On February 16, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <americascashstorecom.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 February 18, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@americascashstorecom.com. Also on February 18, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 17, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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:
Complainant offers online consumer lending services to Internet users.
Complainant holds several trademarks with the United States Patent and Trademark Office (“USPTO”) for its CASH STORE mark (including Reg. No. 2,969,462, issued July 19, 2005).
Respondent is not commonly known by the <americascashstorecom.com> domain name, and Complainant has not authorized Respondent to use its mark.
Respondent registered the disputed <americascashstorecom.com> domain name on June 29, 2009.
The <americascashstorecom.com> domain name resolves to a website that offers consumer lending services in competition with Complainant’s business.
Respondent’s <americascashstorecom.com> domain name is confusingly similar to Complainant’s CASH STORE mark.
Respondent uses the confusing similarity between its <americascashstorecom.com> domain name and Complainant’s CASH STORE mark to confuse Interent users into believing that they are entering the website of Complainant, and Respondent operates the website resolving from the contested domain name for commercial profit.
Respondent does not have any rights to or legitimate interests in the domain name <americascashstorecom.com>.
Respondent registered and uses the contested <americascashstorecom.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the CASH STORE trademark
for purposes of Policy ¶ 4(a)(i) through its
registration of the mark with the USPTO.
See Microsoft Corp. v. Burkes, FA 652743
(Nat. Arb. Forum Apr. 17, 2006): “Complainant has established rights in
the MICROSOFT mark through registration of the mark with the USPTO.” See also Metro. Life
Ins. Co. v. Bonds, FA
873143 (Nat. Arb.
Forum Feb. 16, 2007) (finding that a trademark registration adequately
demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant submits
that Respondent’s <americascashstorecom.com>
domain name is confusingly similar to its CASH STORE mark. The domain name contains the CASH STORE mark
in its entirety as well as the geographic term “
In particular, the addition of the geographic term “
Neither
the addition of an ordinary descriptive word nor a geographic qualifier
transform Respondent’s domain name into separate and distinct marks for the
purpose of a Policy ¶ 4(a)(i) analysis.
See also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding a respondent’s <amextravel.com> domain name confusingly similar to a complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity between the mark and the contested domain name under Policy ¶ 4(a)(i)).
Similarly, the deletion of the space between the elements of
a mark and the addition of the gTLD “.com” is not sufficient to distinguish the
resulting domain name from the mark under the Policy. See Am.
Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb.
Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic
top-level domain, such as ‘.com,’ ‘.net,’
‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed
domain name [<americangenerallifeinsurance.com>] is confusingly similar to the
complainant’s [AMERICAN GENERAL] mark.”); see also Trip Network Inc. v. Alviera, FA 914943
(Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a
domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have any rights to or legitimate interests in the <americascashstorecom.com> domain name. Complainant is required to make out a prima facie case in support of these allegations. Once Complainant has produced a prima facie case, the burden shifts to Respondent to show that it does have rights to or legitimate interests in the disputed domain name. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008):
It
is well established that, once a complainant has made out a prima facie case in
support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.
See also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by a complainant, the burden shifts to a respondent to demonstrate its rights or legitimate interests in a disputed domain name.
Complainant has established a prima facie case under this head of the Policy. Owing to Respondent’s failure to respond to
these proceedings, we may presume that Respondent does not have any right to or
legitimate interest in the disputed domain name. See Am.
Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no
rights to or legitimate interests in a contested domain name where a respondent
fails to respond to a complaint filed under the Policy); see also Bank of Am. Corp. v. McCall, FA
135012 (Nat. Arb. Forum Dec. 31, 2002):
Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.
Nonetheless,
we will examine the record before us, by reference to the criteria set out in
Policy ¶ 4(c), to determine whether there is
in it any basis for concluding that Respondent has rights to or interests in
the contested domain name which are cognizable under the Policy.
We begin by noting that Complainant
argues that Respondent is not commonly known by the <americascashstorecom.com> domain name, nor has Complainant authorized Respondent to use its
mark. Respondent does not contest these
allegations. Moreover, the WHOIS
information for the disputed domain name identifies the registrant of the <americascashstorecom.com> domain name only as
Cyberwire, LLC, which is not similar to the contested domain name. On this record we are constrained to conclude
that Respondent does not possess rights to or legitimate interests in the
disputed domain name under the provisions of Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v.
Eshback, FA 830934 (Nat. Arb. Forum
Dec. 7, 2006) (finding that a respondent failed to establish rights to or legitimate
interests in the domain name <emitmortgage.com> where that respondent was
not authorized to register domain names featuring a complainant’s mark and
failed to submit evidence of that it was commonly known by the disputed domain
name); see
also Coppertown Drive-Thru Sys.,
LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that a respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the pertinent WHOIS
information, suggesting that that respondent was commonly known by the disputed
domain name).
We also observe that Complainant contends, and Respondent does not deny, that Respondent is using the confusing similarity between its <americascashstorecom.com> domain name and Complainant’s mark to confuse Interent users into believing that they are entering the website of Complainant, and Respondent operates the website resolving from the contested domain name for commercial profit. Respondent’s use of the disputed domain name to attract Internet users to its website for commerical gain is evidence that Respondent is not using the <americascashstorecom.com> domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002): “Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.” See also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that a respondent’s use of a disputed domain name to redirect Internet users to a financial services website, which competed with the business of a complainant, was not a bona fide offering of goods or services).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent has registered and used the domain name <americascashstorecom.com> in bad faith because Respondent’s domain name resolves to a website that competes with the business of Complainant in offering financial services to consumers. Complainant further asserts that this use by Respondent disrupts Complainant’s business by diverting Internet users seeking Complainant’s products and services to Respondent’s competing website. We conclude, therefore, that Respondent has registered and uses the <americascashstorecom.com> domain name in bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005):
Respondent
is appropriating Complainant’s mark to divert Complainant’s customers to
Respondent’s competing business. The Panel finds this diversion is evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
To the same effect, see also Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005).
Complainant also contends, without contradiction from Respondent, that Respondent has registered and uses the disputed domain name in bad faith by intentionally attracting Internet users to its website for Respondent’s commercial gain. This behavior on the part of Respondent brings the disputed domain name within the purview of Policy ¶ 4(b)(iv). See Dell Inc. v. Innervision Web Solutions, FA 445601 (Nat. Arb. Forum May 23, 2005) (finding evidence of bad faith under Policy ¶ 4(b)(iv) where a respondent used the <dellcomputerssuck.com> domain name to divert Internet users to that respondent’s website, which offered computer products and services in competition with the business of a complainant); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) where a respondent and a complainant were in the same line of business and that respondent used a domain name confusingly similar to that complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <americascashstorecom.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 30, 2010
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