Moneytree, Inc. v. Money Tree Lending Co.
Claim Number: FA0308000190517
Complainant is Moneytree, Inc., Seattle, WA
(“Complainant”) represented by Kathleen
T. Petrich of Stokes Lawrence, P.S. Respondent is Money Tree Lending Co., Littleton, CO
(“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <moneytreelendingllc.com> registered with Network
Solutions, 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.
James
A. Carmody, Esq., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on August 25, 2003; the Forum received a hard copy of the
Complaint on August 28, 2003.
On
August 28, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that
the domain name <moneytreelendingllc.com> is registered with Network
Solutions, Inc. and that Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
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 29, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 18, 2003 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent via e-mail, post and fax, to all entities and
persons listed on Respondent's registration as technical, administrative and
billing contacts, and to postmaster@moneytreelendingllc.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
September 27, 2003, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed James A. Carmody, Esq.,
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."
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 makes the following assertions:
1. Respondent’s <moneytreelendingllc.com>
domain name is confusingly similar to Complainant’s MONEY TREE mark.
2. Respondent does not have any rights or
legitimate interests in the <moneytreelendingllc.com> domain name.
3. Respondent registered and used the <moneytreelendingllc.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant has
provided proof of a service mark registration with the United States Patent and
Trademark Office (“USPTO”) for the MONEY TREE mark (Reg. No. 2,166,890
registered on June 23, 1998) related to financial services. Complainant has
offered its services in connection with the MONEY TREE mark and trade name
since 1983.
Respondent
registered the <moneytreelendingllc.com> domain name on May 30,
2001. Respondent is using the disputed domain name to offer financial services
similar to those offered by 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."
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.
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 has
demonstrated its rights in the MONEY TREE mark through registration with the
USPTO and continuous use in commerce since 1983.
Complainant
argues that Respondent’s <moneytreelendingllc.com> domain name is
confusingly similar to Complainant’s MONEY TREE mark because the disputed
domain name appropriates Complainant’s entire mark and simply adds the generic
or descriptive terms “lending” and “llc” to the end of the mark. The addition
of these generic or descriptive terms fails to diminish the confusing
similarity between Respondent’s domain name and Complainant’s mark, especially
because the term “lending” has a direct relationship with Complainant’s financial
services. See L.L. Bean, Inc. v.
ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that
combining the generic word “shop” with Complainant’s registered mark “llbean”
does not circumvent Complainant’s rights in the mark nor avoid the confusing
similarity aspect of the ICANN Policy); see also Brambles Industries Ltd. v. Geelong Car Co. Pty. Ltd., trading as
Geelong City Motors, D2000-1153 (WIPO Oct. 17, 2000) (finding that the
domain name <bramblesequipment.com> is confusingly similar because the
combination of the two words "brambles" and "equipment" in
the domain name implies that there is an association with Complainant’s
business).
The Panel finds
that Complainant has established Policy ¶ 4(a)(i).
Respondent has
neglected to respond to Complainant’s allegations in this proceeding. Thus, the
Panel accepts all reasonable allegation and inferences in the Complaint as
true. See 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”); see
also Desotec N.V. v. Jacobi Carbons
AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows
a presumption that Complainant’s allegations are true unless clearly
contradicted by the evidence).
Furthermore,
Respondent has failed to invoke any circumstances that could demonstrate rights
to or legitimate interests in the <moneytreelendingllc.com> domain
name. When Complainant asserts a prima facie case against Respondent,
the burden shifts to Respondent to show that it has rights to or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where Respondent fails to respond); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc.,
AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests
where no such right or interest was immediately apparent to the Panel and
Respondent did not come forward to suggest any right or interest it may have
possessed).
Respondent was
using the <moneytreelendingllc.com> domain name, a domain name
confusingly similar to Complainant’s federally registered service mark, to
offer financial services in direct competition with Complainant’s services. The
use of a domain name confusingly similar to Complainant’s mark to compete with
Complainant in the financial services industry represents neither a bona fide
offering of goods or services with regard to Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use with regard to Policy ¶ 4(c)(iii). See Chip Merch., Inc. v. Blue Star Elec.,
D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were
confusingly similar to Complainant’s mark and that Respondent’s use of the
domain names to sell competing goods was illegitimate and not a bona fide
offering of goods); see also
Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001)
(finding no rights or legitimate interests where Respondent generated
commercial gain by intentionally and misleadingly diverting users away from
Complainant's site to a competing website).
Complainant
maintains that Respondent is neither affiliated with Complainant nor has
Respondent been granted the right or permission to use the MONEY TREE mark.
Moreover, Respondent has provided no affirmative evidence that it was commonly
known by MONEY TREE LENDING LLC or <moneytreelendingllc.com>
before the disputed domain name was registered. Thus, the Panel concludes that
Respondent has failed to establish any rights to or legitimate interests in the
disputed domain name in accord with Policy ¶ 4(c)(ii). See Yoga
Works, Inc. v. Arpita d/b/a Shanti Yoga Works, FA 155461 (Nat. Arb.
Forum June 17, 2003) (finding that
Respondent was not “commonly known by” the <shantiyogaworks.com>
domain name despite listing its name as “Shanti Yoga Works” in its WHOIS
contact information because there was “no
affirmative evidence before the Panel that Respondent was ever ‘commonly known
by’ the disputed domain name prior to its registration of the disputed domain
name”); see also Neiman Marcus Group, Inc. v. Neiman-Marcus,
FA 135048 (Nat. Arb. Forum Jan. 13, 2003) (noting that “Complainant has established itself as the sole holder of all rights and
legitimate interests in the NEIMAN MARCUS mark,” in holding that Respondent was
not commonly known by the <neiman-marcus.net>
name, despite naming itself
“Neiman-Marcus” in its WHOIS contact information).
Accordingly, the
Panel finds that Complainant has established Policy ¶ 4(a)(ii).
Respondent is
using the <moneytreelendingllc.com> domain name to compete
directly with Complainant in the financial services arena. The use of
Complainant’s service mark to attract Internet users to Respondent’s website
for commercial gain by creating a likelihood of confusion with Complainant’s
mark demonstrates Respondent’s registration and use in bad faith under Policy ¶
4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto. a/k/a Larry Petersons,
FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name
was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through
Respondent’s registration and use of the infringing domain name to
intentionally attempt to attract Internet users to its fraudulent website by
using Complainant’s famous marks and likeness); see also Kmart v. Khan,
FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits
from its diversionary use of Complainant's mark when the domain name resolves
to commercial websites and Respondent fails to contest the Complaint, it may be
concluded that Respondent is using the domain name in bad faith pursuant to
Policy ¶ 4(b)(iv)).
Furthermore, by
entering the financial services arena through appropriation of Complainant’s
service mark in the <moneytreelendingllc.com> domain name,
Respondent has exhibited bad faith registration and use of a domain name
pursuant to Policy ¶ 4(b)(iii) because Respondent likely registered the
disputed domain name primarily for the purpose of disrupting the business of a
competitor. See Surface Protection
Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that,
given the competitive relationship between Complainant and Respondent,
Respondent likely registered the contested domain name with the intent to
disrupt Complainant's business and create user confusion); see also S. Exposure v.
S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding
Respondent acted in bad faith by attracting Internet users to a website that
competes with Complainant’s business).
The Panel finds
that Policy ¶ 4(a)(iii) has been established.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <moneytreelendingllc.com> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated:
October 13, 2003
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