Moneytree, Inc. v. William Kerk / HA Will inc.
Claim Number: FA1508001634274
Complainant is Moneytree, Inc. (“Complainant”), represented by Kathleen T. Petrich of MILLER NASH GRAHAM & DUNN LLP, Washington, USA. Respondent is William Kerk / HA Will inc. (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <moneytreeincshop.com>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 20, 2015; the Forum received payment on August 20, 2015.
On August 20, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <moneytreeincshop.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 August 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 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@moneytreeincshop.com. Also on August 21, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 18, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Moneytree, Inc., owns the MONEY TREE mark in numerous versions through the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,166,890, registered June 23, 1998). Complainant offers business and consumer lending services, including payday lending, check cashing, debit and stored value cards, and other financial services. The <moneytreeincshop.com> domain name is confusingly similar to the MONEY TREE mark. The domain name contains Complainant’s mark in its entirety, removes the space between MONEY and TREE, adds the generic words “inc” and “shop,” and attaches the generic top-level domain (“gTLD”) “.com” to the domain name.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, and Complainant has not licensed or given permission to Respondent to use the MONEY TREE trademark. Respondent’s lack of rights or legitimate interests in the <moneytreeincshop.com> domain name is made evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent is using the <moneytreeincshop.com> domain name to fraudulently provide unregulated financial services to unsuspecting consumers, passing itself off as Complainant.
Respondent has engaged in bad faith registration and use of the <moneytreeincshop.com> domain name. Respondent registered the disputed domain name for the purpose of disrupting Complainant’s business by diverting Internet customers seeking Complainant’s website. Further, by choosing a domain name connected with Complainant’s well-known mark, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. Finally, Respondent had knowledge or should have had knowledge of Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the MONEY TREE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,166,890, registered June 23, 1998). Complainant offers business and consumer lending services, including payday lending, check cashing, debit and stored value cards, and other financial services.
Respondent, William Kerk / HA Will inc., registered the <moneytreeincshop.com> domain name on January 15, 2014. Respondent is using the <moneytreeincshop.com> domain name to fraudulently provide unregulated financial services to unsuspecting consumers, passing itself off as Complainant.
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.”).
Complainant owns the MONEY TREE mark through registration with the USPTO. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Respondent’s <moneytreeincshop.com> domain name is confusingly similar to Complainant’s MONEY TREE mark under Policy ¶ 4(a)(i).. The domain name contains Complainant’s mark in its entirety, removes the space between MONEY and TREE, adds the generic words “inc” and “shop,” and attaches the gTLD “.com” to the domain name.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). Complainant has not licensed or given permission to Respondent to use the MONEY TREE trademark. The WHOIS information for the disputed domain name lists “William Kerk / HA Will inc.” as the registrant of record. See 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).
Respondent has failed to use the <moneytreeincshop.com> domain name domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent is using the <moneytreeincshop.com> domain name to fraudulently provide unregulated financial services to unsuspecting consumers, passing itself off as Complainant. Financial lending is a highly regulated business, and Respondent is not licensed under the California Department of Business Oversight. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); 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).
Respondent registered the disputed domain name for the purpose of disrupting Complainant’s business by diverting Internet customers seeking Complainant’s website. Respondent uses the domain name to solicit visitor’s personal and financial information under the guise of providing online lending services. Such behavior is disruptive to Complainant’s business and is evidence of 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).”).
By choosing a domain name connected with Complainant’s well-known mark, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. The <moneytreeincshop.com> domain name resolves to a website that offers competing lending and financial services. Respondent’s site confuses consumers as to the source, sponsorship, affiliation or endorsement of Respondent’s website. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant). Therefore, Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Respondent had actual knowledge of Complainant’s MONEY TREE mark when registering the <moneytreeincshop.com> domain name. Therefore, Respondent registered the domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration").
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <moneytreeincshop.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 2, 2015
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