Claim Number: FA1008001338754
Complainant is Cottonwood
Financial Ltd. (“Complainant”), represented by Duffy Dillon, of Brennan Steil S.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <titleloancashstore.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.
Louis E. Condon, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 3, 2010.
On August 3, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <titleloancashstore.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 August 11, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 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@titleloancashstore.com by e-mail. Also on August 11, 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 September 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
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" 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:
1. Respondent’s <titleloancashstore.com> domain name is confusingly similar to Complainant’s CASH STORE mark.
2. Respondent does not have any rights or legitimate interests in the <titleloancashstore.com> domain name.
3. Respondent registered and used the <titleloancashstore.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cottonwood Financial Ltd., operates company-owned offices offering financial services and short-term consumer loans under the CASH STORE mark. Complainant also holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CASH STORE mark (e.g., Reg. No. 2,939,462 issued July 19, 2005).
Respondent, Easy Cash, registered the <titleloancashstore.com> domain name on February 3, 2010. The disputed domain name resolves to a website that offers short-term consumer loans.
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.
Complainant asserts rights in the CASH STORE mark through its registration of the mark with the USPTO (e.g., Reg. No. 2,939,462 issued July 19, 2005). The Panel finds this trademark registration sufficiently proves Complainant’s rights in the CASH STORE mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); 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 avers Respondent’s <titleloancashstore.com> domain name is confusingly similar to its CASH STORE mark. Respondent replicates Complainant’s mark in the disputed domain name and then merely deletes the space between the words in the mark. Respondent also adds the generic terms “title” and the descriptive term “loan,” which describes one of Complainant’s services, to Complainant’s mark in the domain name. Finally, Respondent affixes the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. The Panel finds Respondent’s slight alterations and additions do not distinguish its disputed domain name from Complainant’s mark. See Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Nat. Arb. Forum Feb. 19, 2003) (“Punctuation and spaces between words are not significant in determining the similarity of a domain name and a mark because punctuation and spaces are not reproducible in a domain name.”); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Consequently, the Panel finds Respondent’s <titleloancashstore.com> domain name is confusingly similar to Complainant’s CASH STORE mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must make a prima facie case showing Respondent lacks rights and legitimate interests in the <titleloancashstore.com> domain name under Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests in the domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “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.”); see also 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.”). Although Respondent failed to submit a Response, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the <titleloancashstore.com> domain name under Policy ¶ 4(c).
The WHOIS information lists “Easy Cash” as the registrant of the disputed domain name. Although the registration information has one word in common with the disputed domain name, the Panel determines that is not sufficiently similar to determine Respondent is commonly known by the <titleloancashstore.com> domain name under Policy ¶ 4(c)(ii). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name); see also Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”).
Complainant alleges Respondent’s disputed domain name resolves to a website that offers consumer lending services that compete with Complainant’s consumer lending services. The Panel finds Respondent uses a confusingly similar domain name to offer short-term consumer loans that compete with Complainant’s business. Therefore, the Panel finds Respondent does not use the disputed domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb. Forum May 11, 2007) (Panelist Tyrus R. Atkinson, Jr., dissenting) (finding that the respondent’s use of a confusingly similar domain name to advertise real estate services which competed with the 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 under Policy ¶ 4(c)(iii)); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds Respondent uses its <titleloancashstore.com> domain name to redirect Internet users to third-party websites, some of which provide services that compete with Complainant’s services. Subsequently, the Panel finds the disputed domain name disrupts Complainant’s business, which is evidence of registration and use 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).”); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Finally, Complainant contends that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. As previously discussed, the <titleloancashstore.com> domain name is confusingly similar to Complainant’s CASH STORE mark. Moreover, the resolving website provides services that are similar to the services that Complainant offers. The Panel presumes Respondent profits from its use of the domain name. Therefore, the Panel finds this behavior provides additional evidence of registration and use in bad faith under Policy ¶ 4(b)(iv). See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <titleloancashstore.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: September 14, 2010
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