Claim Number: FA1002001308120
Complainant is Cottonwood
Financial Ltd. (“Complainant”), represented by Brennan
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <200cashstore.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 submitting 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 <200cashstore.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.om, 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 19, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 11, 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 firstname.lastname@example.org. Also on February 19, 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 19, 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 provides financial services and short-term consumer loans under the name “The Cash Store.”
Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CASH STORE service mark (including Reg. No. 2,969,462, issued July 19, 2005).
Respondent registered the <200cashstore.com> domain name on September 12, 2008.
The disputed domain name resolves to a website offering loan services similar to and in competition with the business of Complainant.
Respondent’s disputed <200cashstore.com> domain name is confusingly similar to Complainant’s CASH STORE mark.
Respondent does not have any rights to or legitimate interests in the domain name <200cashstore.com>.
Respondent registered and uses the <200cashstore.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 service mark 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 owns trademark registrations for the CASH STORE
mark with the USPTO. Such registration is
sufficient to establish Complainant’s rights in the mark, even where Respondent
resides or operates in a country outside the
Complainant argues that Respondent’s <200cashstore.com> domain name is
confusingly similar to Complainant’s CASH STORE mark. The differences between the disputed domain
name and Complainant’s mark are the addition of the number “200,” the deletion
of the space between the two words, and the addition of the generic top-level
domain (“gTLD”) “.com.” Adding a non-distinct
number like “200” to Complainant’s complete mark is insufficient to distinguish
the disputed domain name from the mark for purposes of Policy ¶ 4(a)(i). See Am. Online, Inc. v. garybush co
the addition of numerals to a mark . . . does not defeat a confusingly similar claim.
The deletion of the space and the addition of the gTLD “.com” do not differentiate the disputed domain name from Complainant’s mark because spaces are not permitted in a domain name and a gTLD is a necessary component of domain names. 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.”)
Therefore, the Panel finds that Respondent’s disputed <200cashstore.com> domain name is confusingly similar to Complainant’s CASH STORE mark.
Complainant contends that Respondent lacks rights to and legitimate interests in the disputed domain name. Once Complainant sets out a prima facie case, the burden shifts to Respondent to demonstrate 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 to or legitimate interests in a disputed domain name.
Complainant has set out a prima facie case in these proceedings. Because Respondent has failed to respond to the allegations against it, we may presume that Complainant’s allegations are true and that Respondent lacks rights to and legitimate interests in the disputed domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for a panel to draw adverse inferences from a respondent’s failure to reply to a complaint filed under the Policy); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004):
Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.
We elect, nonetheless, to consider the evidence presented, in light of the criteria found in Policy ¶ 4(c), to determine whether there is any basis in the record for concluding that Respondent has rights to or legitimate interests in the disputed domain name.
We begin by noting that the WHOIS information for the disputed domain name identifies the registrant only as “Karnab Web Marketing Services Pvt Ltd”, which does not resemble the disputed domain name. The record reveals no other evidence bearing on the question. We conclude, therefore, that Respondent is not commonly known by the disputed domain name so as to acquire rights to or legitimate interests in the contested domain name within the meaning of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where, among other things, the pertinent WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the disputed domain names). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by the domain name).
We also observe that Complainant contends, and Respondent does not deny, that Respondent’s use of the disputed domain name to offer goods or services that compete with Complainant’s business is not a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶¶ 4(c)(i) or 4(c)(iii). We agree. See Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb. Forum May 11, 2007) (Panelist Tyrus R. Atkinson, Jr., dissenting) (finding that a respondent’s use of a contested domain name to advertise real estate services which competed with a complainant’s business did not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain under Policy ¶ 4(c)(iii)); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003): “Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
It is undisputed on the record before us that Respondent’s domain name redirects Internet users to Respondent’s website which offers short-term loans competing with Complainant’s business. Respondent’s website thus disrupts Complainant’s business because Internet users may decide to use Respondent’s loan services after arriving at Respondent’s site, despite an original intent to seek out Complainant. Respondent’s effort to disrupt Complainant’s business in this manner demonstrates bad faith registration and use of the contested domain name pursuant to 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).
See also Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that a respondent’s registration of a domain name substantially similar to a complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that that respondent registered and used the domain name to disrupt that complainant’s business under Policy ¶ 4(b)(iii)).
Respondent’s incorporation of Complainant’s mark in the disputed domain name reveals an intention to attract and divert Internet users who are familiar with Complainant’s mark and are searching for information regarding Complainant. Respondent’s misleading attempt to attract unwary Internet users in this manner, presumably for Respondent’s commercial gain, constitutes bad faith registration and use of the contested domain name under Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where a respondent used a domain name, for commercial gain, to attract Internet users to a business competitor of a complainant); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where a domain name resolved to a website offering products similar to those sold under a complainant’s mark).
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 <200cashstore.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 31, 2010
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