Cashland Financial Services, Inc. v. Stephanie Brock
Claim Number: FA1002001308601
Complainant is Cashland Financial Services, Inc. (“Complainant”), represented by Jason
R. Fulmer, of Gardere Wynne Sewell LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cashlandfinancialservices.com>, registered with Enom, 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 17, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 18, 2010.
On February 18, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <cashlandfinancialservices.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 11, 2010 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@cashlandfinancialservices.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 22, 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 (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:
Complainant operates in the financial services industry.
Complainant offers its financial services under its CASHLAND service mark, which Complainant has registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,683,331, issued Feb. 4, 2003).
Respondent registered the disputed domain name on January 5, 2010.
The disputed domain name resolves to a website purporting to offer loan services in competition with the business of Complainant, but instead defrauds potential loan applicants by requiring an “upfront” application fee and then failing to provide the promised loan services.
Respondent’s <cashlandfinancialservices.com> domain name is confusingly similar to Complainant’s CASHLAND mark.
Respondent is not commonly known by the disputed domain name.
Respondent attempts to pass itself off as Complainant by using a website similar in appearance to Complainant’s official website to resolve from the disputed domain name.
Respondent does not have any rights to or legitimate interests in the domain name <cashlandfinancialservices.com>.
Respondent registered and uses the <cashlandfinancialservices.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 has sufficiently established its rights in the
CASHLAND mark for purposes of Policy ¶ 4(a)(i) through
its service mark registration with the USPTO.
See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a mark
registration adequately demonstrates a complainant’s rights in the mark under
Policy ¶ 4(a)(i)); see
also
Complainant submits that Respondent’s <cashlandfinancialservices.com> domain name is confusingly similar to Complainant’s CASHLAND mark pursuant to Policy ¶ 4(a)(i). Respondent’s domain name contains Complainant’s mark in its entirety, and merely adds the descriptive phrase “financialy services” and the generic top-level domain (“gTLD”) “.com.” A domain name that adds to a mark a generic term with an obvious relationship to Complainant’s business creates confusing similarity between the domain name and the mark. See L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that combining the generic word “shop” with the complainant’s registered mark “llbean” does not circumvent a complainant’s rights in the mark nor avoid the confusing similarity aspect of the ICANN Policy); see also PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that “Respondent does not by adding the common descriptive or generic terms ‘corp’, ‘corporation’ and ‘2000’ following ‘PGE’, create new or different marks in which it has rights or legitimate interests, nor does it alter the underlying [PG&E] mark held by Complainant”).
Moreover, the addition of a gTLD to a mark in forming a contested domain name does not distinguish the resulting disputed domain name from the mark. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003):
The
addition of a top-level domain is irrelevant when establishing whether or not a
mark is identical or confusingly similar, because top-level domains are a
required element of every domain name.
Therefore, the Panel finds that Respondent’s <cashlandfinancialservices.com>
domain name is
confusingly similar to Complainant’s CASHLAND mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent does not have rights to or legitimate interests in the <cashlandfinancialservices.com> domain name. Once Complainant has set out a prima facie case under this head of the Policy, the burden shifts to Respondent to demonstrate its rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that:
complainant must first make a prima facie
case that [the] respondent lacks rights and legitimate interests in the
disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to
[the] respondent to show it does have rights or legitimate interests.
Complainant has adequately established a prima facie case in these
proceedings. Because Respondent has
failed to respond to the allegations against it, we may presume that Respondent
lacks rights to or legitimate interests in the disputed domain name.
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.
However, we elect to consider the
record before us, in consideration of the factors listed in Policy ¶ 4(c), to
determine whether there is in it any basis for concluding that Respondent has
rights to or legitimate interests in the disputed domain name which are
cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name. We also note that the pertinent WHOIS information lists the registrant only as “Stephanie Brock,” which does not resemble the disputed domain name. On this record, we are constrained to conclude that there is no evidence to suggest that Respondent has rights to or legitimate interests in the disputed domain name because it is commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that a respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names where the relevant WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domains and there was no other evidence in the record to suggest that that respondent was commonly known by the domain names in dispute); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003): “Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”
We further observe that Complainant alleges,
without objection from Respondent, that Respondent is using the disputed domain
name fraudulently to acquire Internet users’ money by requiring an up-front fee
when purporting to offer loan services, and that Respondent attempts to pass
itself off as Complainant by using a website similar in appearance to
Complainant’s official website to resolve from the disputed domain name. Such a use of the contested domain is not 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 Kmart of
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s domain name resolves to a website purporting to offer financial services in competition with the business of Complainant. Respondent’s use of the disputed domain name in this fashion disrupts Complainant’s business, which evidences bad faith registration and use of the domain under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a domain name confusingly similar to a complainant’s mark in order to attract Internet users to a website containing commercial links to the websites of a complainant’s business competitors represents bad faith registration and use of the domain name under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where a respondent’s website featured links to websites competing with the business of a complainant and included a link to that complainant’s website, that respondent’s use of the <redeemaamiles.com> domain name constituted disruption of that complainant’s business under Policy ¶ 4(b)(iii)).
Respondent is evidently attempting to profit by creating a likelihood of confusion as to Complainant’s possible affiliation with the disputed domain name. This it does by using the disputed domain name fraudulently to acquire Internet users’ money by requiring an up-front fee while purporting to offer loan services, while attempting to pass itself off as Complainant. Respondent has thus engaged in bad faith registration and use of the contested domain under Policy ¶ 4(b)(iv). See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that a respondent’s use of a disputed domain name to redirect Internet users to commercial websites unrelated to a complainant, and presumably with the purpose of receiving a commission or pay-per-click referral fee, did not evidence rights to or legitimate interests in the domain).
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 <cashlandfinancialservices.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 5, 2010
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