Check Into Cash, Inc. v.
Alan Questar Alan Questar c/o Khmer Enet
Claim Number: FA0706001024235
PARTIES
Complainant is Check Into Cash, Inc., (“Complainant”) represented by Alicia Brown Oliver, of Chambliss, Bahner & Stophel, P.C., 1000
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <checkintocash.us>, registered with Spot Domain
LLC.
PANEL
The undersigned certifies that he acted independently and impartially
and to the best of his knowledge has no known conflict in serving as Panelist
in this proceeding.
Honorable Karl V. Fink (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on June 28, 2007;
the Forum received a hard copy of the Complaint on June 28, 2007.
On July 2, 2007, Spot Domain LLC confirmed by e-mail to the
Forum that the <checkintocash.us> domain name is registered with Spot
Domain LLC and that Respondent is the current registrant of the
name. Spot
Domain LLC has verified that Respondent is bound by the Spot Domain LLC registration agreement and has
thereby agreed to resolve domain-name disputes brought by third parties in
accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution
Policy (the “Policy”).
On July 6, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 26, 2007 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On August 1, 2007, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Honorable Karl V.
Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum has discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any
rules and principles of law that the Panel deems applicable, without the
benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <checkintocash.us> domain name is identical to Complainant’s CHECK INTO CASH mark.
2.
Respondent does not have any rights or
legitimate interests in the <checkintocash.us>
domain name.
3.
Respondent registered and used the <checkintocash.us> domain name in
bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Check
Into Cash, Inc., provides small, unsecured, short-term loans to individuals in
need of temporary financing. Complainant
and its affiliates operate 1250 financial service centers across the
Respondent registered the <checkintocash.us> domain name on
February 22, 2005. Respondent’s domain
name resolves to a website that features links to various commercial websites
offering competing short-term loan services.
DISCUSSION
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(f), 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 or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
Complainant has established rights in the
CHECK INTO CASH mark through registration with the USPTO. The Panel finds that Complainant has
established rights in the mark pursuant to Policy ¶ 4(a)(i). See Metro.
Life Ins. Co. v. Bin g Glu,
FA 874496 (Nat Arb. Forum Feb. 13, 2007) (finding rights in
the METLIFE mark as a result of its registration with the
Complainant
contends that Respondent’s <checkintocash.us>
domain name is identical to Complainant’s mark.
Respondent’s disputed domain name contains Complainant’s entire CHECK
INTO CASH mark, removes the spaces separating the terms of Complainant’s mark,
and adds the country-code top-level domain (“ccTLD”) “.us.” The Panel finds that neither the omission of
spaces nor the addition of a ccTLD sufficiently distinguishes Respondent’s
domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Complainant contends that Respondent does not have rights or legitimate interests in the <checkintocash.us> domain name. Panels have long held that in certain circumstances, allegations of Respondent’s lack of rights or legitimate interests in a disputed domain name amounts to a prima facie case under Policy ¶ 4(a)(ii). In the matter at hand, the Panel finds that Complainant has established a prima facie case under the Policy, shifting the burden from Complainant to Respondent. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Complainant contends that Respondent is using the <checkintocash.us> domain name to operate a website containing links to several competing commercial websites. The Panel infers from its use of the disputed domain name that Respondent is collecting click-through fees for each misdirected Internet user that connects to a competing website. The Panel finds that Respondent has not made a bona fide offering of goods or services pursuant to policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the UDRP); see also Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA 100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate interests in the disputed domain name where the respondent was using the complainant’s mark to redirect Internet users to a website offering credit card services unrelated to those services legitimately offered under the complainant’s mark).
Moreover, Complainant contends that Respondent is not commonly known by the <checkintocash.us> domain name nor owns a trademark in the disputed domain name or a term featured in the disputed domain name. Respondent’s failure to respond to Complainant’s assertions leaves the Panel with no evidence to the contrary. As a result, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii) or owner of a mark confering rights in the <checkintocash.us> domain name under Policy ¶ 4(c)(i). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration
and Use in Bad Faith
Respondent is using the <checkintocash.us> domain name in bad
faith. Respondent’s domain name resolves
to a website featuring links to various competing commercial websites from
which Respondent presumably receives referral fees. The Panel finds such use to be evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure, Inc., FA 94864 (Nat.
Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by
attracting Internet users to a website that competes with the complainant’s
business); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that Respondent's
purpose of registration and use was to either disrupt or create confusion for
Complainant's business in bad faith pursuant to UDRP ¶¶ 4(b)(iii)
[and] (iv).”).
Finally, Respondent’s use is likely to cause confusion
among Internet users as to Complainant’s sponsorship of or affiliation with the
<checkintocash.us>
domain name and resulting website.
Respondent is capitalizing on this confusion by collecting click-through
fees for each Internet user misdirected to a competing financial services
website. Respondent’s use is further
evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to UDRP ¶ 4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”); see also G.D.
Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21,
2002) (finding that the respondent registered and used the domain name in bad
faith pursuant to UDRP ¶ 4(b)(iv) because the respondent was using the
confusingly similar domain name to attract Internet users to its commercial
website).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <checkintocash.us> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: August 13, 2007
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