CNU ONLINE Holdings, LLC v. Pham Dinh Nhut
Claim Number: FA1504001614751
Complainant is CNU ONLINE Holdings, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Pham Dinh Nhut (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <ashnetusa.com>, <cachnetusa.com>, <cashenetusa.com>, <cashentusa.com>, <cashnetussa.com>, <casshnetusa.com> and <castnetusa.com>, registered with APRIL SEA INFORMATION TECHNOLOGY CORPORATION.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 15, 2015; the Forum received payment on April 15, 2015.
On April 23, 2015, APRIL SEA INFORMATION TECHNOLOGY CORPORATION confirmed by e-mail to the Forum that the <ashnetusa.com>, <cachnetusa.com>, <cashenetusa.com>, <cashentusa.com>, <cashnetussa.com>, <casshnetusa.com> and <castnetusa.com> domain names are registered with APRIL SEA INFORMATION TECHNOLOGY CORPORATION and that Respondent is the current registrant of the names. APRIL SEA INFORMATION TECHNOLOGY CORPORATION has verified that Respondent is bound by the APRIL SEA INFORMATION TECHNOLOGY CORPORATION registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On 27 April, 2015 the Forum sent a deficiency letter to Complainant, requesting that the Repondent name and contact information be matched with those listed in the WHOIS pages for the disputed domain names, and that the Complaint be translated into Vietnamese because that is the language of the registration agreement. Complainant complied, sending the amended Complaint in both English and Vietnamese to the Forum.
On May 4, 2015, the Forum served the Complaint (in both English and Vietnamese) and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 2015 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@ashnetusa.com, postmaster@cachnetusa.com, postmaster@cashenetusa.com, postmaster@cashentusa.com, postmaster@cashnetussa.com, postmaster@casshnetusa.com, postmaster@castnetusa.com. Also on May 4, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail 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. The Written Notice of Complaint was sent in both the English and Vietnamese languages.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default, both in English and in Vietnamese.
On June 1, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it provides specialty financial services to individuals via its website <www.cashnetusa.com> and that it has registered trademarks for the name CASHNETUSA, filed on March 21, 2006, with a first use date of May 1, 2004. It launched and publicized its website on January 22, 2004. Since then, it has grown into one of the leaders in online loan services, with over 1.5 million customers around the USA.
Complainant alleges that the disputed domain names are confusingly similar to its mark because they misspell Complainant’s mark by either adding a single character, removing a single character, adding an incorrect character, or transposing two characters. Such alterations are examples of typosquatting. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain names. It is neither commonly known by the disputed domain names, nor has Respondent been given authorization by Complainant to register any variation of its mark in domain names. Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Further, Respondent is not using the disputed domain names in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant's business. Respondent presumably gains pay-per-click fees from such links. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has attempted to disrupt Complainant’s business by including links on its resolving page which directly compete with Complainant’s business, demonstrating bad faith under Policy ¶ 4(b)(iii). Further, Respondent likely profits from the third-party links included in the web sites at the disputed domain names, evidencing bad faith under Policy ¶ 4(b)(iv). Finally, Respondent’s typosquatting behavior is itself evidence of bad faith under Policy ¶ 4(a)(iii). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent is a recalcitrant, serial cybersquatter / typosquatter. Searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior. Complainant cites UDRP precedents to the effect that that multiple prior UDRP decisions are sufficient evidence indicating a respondent’s bad faith use and registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the name CASHNETUSA, dating back to March 2006, and common law trademark rights dating back to 2004. Its marks are well-known.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names were registered between October 2006 and August 2007.
The products and services offered by Complainant are widely used and well known.
Respondent is using the disputed domain names to resolve to web sites that contain links to web sites containing commercial links to products and services that compete with those of Complainant. The web sites at the disputed domain names are in English and contain links to English-language web sites.
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."
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.
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.”).
Prior to considering the substance of the case, the Panel must rule on the issue of the language of the proceedings.
Paragraph 11(a) of the Rules specifies that “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The language of the Registration Agreement is Vietnamese, but Complainant originally submitted the Complaint in English. As noted above, the web sites at the disputed domain names are in English and they contain links to English-language web sites, some of which offer products and services that compete with those of Complainant.
Respondent (who was notified in Vietnamese as well as in English, and who did not reply to the Complainant’s contentions) has not contested that he is capable of proceeding in English. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate.
The Panel finds that Respondent is capable of proceeding in English and that, pursuant to Rule 10, it would be appropriate, more expedient, and fair to both parties to proceed in English.
Consequently, after considering the circumstance of the present case, the Panel decides that the proceeding should be in English. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language).
The Panel finds that the disputed domain names are confusingly similar to Complainant’s mark because they misspell Complainant’s mark by either adding a single character, removing a single character, adding an incorrect character, or transposing two characters. Such alterations to a mark in domain name registrations are not sufficient to overcome a finding of confusing similarity per Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Neuberger Berman Inc. v. Jacobsen, D2000-0323 (WIPO June 12, 2000) (finding that the respondent’s <newbergerberman.com> domain name was confusingly similar to the complainant’s NEUBERGER BERMAN mark despite the slight difference in spelling); see also Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark).
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain names. Respondent is neither commonly known by the disputed domain names, nor has Respondent been given authorization by Complainant to register any variation of its mark in domain names. 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 that it is commonly known by the domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Further, Respondent is not using the disputed domain names in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Rather, the disputed domain names resolve to pages that display generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel finds that Respondent’s use of the disputed domain names constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Respondent (who did not reply to the Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, the Panel finds that Respondent profits from the third-party links included on the disputed domain names’ resolving pages, which include links to competitors of Complainant. This is evidence of bad faith under Policy ¶ 4(b)(iv): Respondent has attempted to attract, for commercial gain, Internet users to its disputed domain names and profiting from the source, sponsorship, affiliation, or endorsement of Respondent’s websites or location. 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 Policy ¶ 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.’”).
Further, the Panel finds that Respondent’s typosquatting behavior is itself evidence of bad faith under Policy ¶ 4(a)(iii). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.); see also Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ashnetusa.com>, <cachnetusa.com>, <cashenetusa.com>, <cashentusa.com>, <cashnetussa.com>, <casshnetusa.com> and <castnetusa.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 2, 2015
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