Golden Title Loans, LLC dba 745Cash v. Laura Yun / Offshore Hosting Solutions Ltd.
Claim Number: FA1611001703936
Complainant is Golden Title Loans, LLC dba 745Cash (“Complainant”), Tennessee, USA. Respondent is Laura Yun / Offshore Hosting Solutions Ltd. (“Respondent”), Seychelles.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <745cash.net>, registered with OnlineNIC, Inc.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 21, 2016; the Forum received payment on November 29, 2016.
On November 21, 2016, OnlineNIC, Inc. confirmed by e-mail to the Forum that the <745cash.net> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, Inc. 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 December 1, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 2016 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@745cash.net. Also on December 1, 2016, 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 December 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 has common law rights in the 745-CASH mark, and Respondent’s <745cash.net> is identical or confusingly similar to the mark.
Respondent lacks rights and legitimate interests in <745cash.net>. There is no connection between Complainant and Respondent, and Respondent misdirects Internet users searching for Complainant online.
Respondent registered and used <745cash.net> in bad faith. The resolving website lists several of Complainant’s physical stores, and redirects Internet users to competing websites.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name, <745cash.net>, was registered on June 17, 2015.
The Panel finds that Complainant has failed to satisfy its burden of proof in establishing common law rights in and to the trademark 745-CASH.
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(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 (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.”).
The Panel finds that Complainant’s complaint is deficient in many regards. First, it fails to prove that it has common law rights in and to the common law mark 745-CASH. The one advertisement that it portrays in its complaint, if proven to be seen by any consumer, may be sufficient to establish common law rights. However, Complainant makes no assertions of its visibility, no assertions about any money spent on advertising, no assertions about the role the mark plays in the minds of the consuming public, etc. The mark is not registered with any governmental entity. Complainant would have this Panel just take judicial notice of its rights in and to the mark. This Panel refuses to make out this case for Complainant. If, in fact, Complainant has evidence of its use in the market place in Tennessee, it needs to present such evidence.
Further, Complainant fails to provide any other evidence of Respondent’s interests or activities using the disputed domain name. Again, it simply states that because the disputed domain name is quite similar to Complainant’s alleged common law mark and its domain name that Respondent MAY be redirecting Internet traffic. However, Complainant fails to recognize that without cognizable trademark rights and evidence that Respondent was aware of those rights when it registered the domain name, the mere similarity of the two domain names proves only that Complainant wishes it registered a similar domain name when it did not. This Panel will not correct this business decision on behalf of Complainant.
As Complainant has failed to carry its burden regard the first element under the Policy, the Panel will not address the remaining elements.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be denied.
Accordingly, it is Ordered that the <745cash.net> domain name remain with Respondent.
Kenneth L. Port, Panelist
Dated: December 30, 2016
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