Dollar Financial Group, Inc. v. McWatson GmbH
Claim Number: FA0512000611727
Complainant is Dollar Financial Group, Inc. (“Complainant”), represented by Hilary B. Miller, 112 Parsonage Road, Greenwich, CT 06830-3942, USA. Respondent is McWatson GmbH (“Respondent”), Am Schachen 1, Wackersberg, 83646, Germany.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <momentumcard.com>, registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 16, 2005; the National Arbitration Forum received a hard copy of the Complaint on December 19, 2005.
On December 20, 2005, Melbourne IT, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <momentumcard.com> domain name is registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne IT, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne IT, Ltd. d/b/a Internet Names Worldwide 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 December 20, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 9, 2006 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@momentumcard.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 11, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 <momentumcard.com> domain name is confusingly similar to Complainant’s MOMENTUM mark.
2. Respondent does not have any rights or legitimate interests in the <momentumcard.com> domain name.
3. Respondent registered and used the <momentumcard.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dollar Financial Group, is a international consumer financial services business and one of the largest originators of small consumer loans, issuers of stored-value cards and providers of check-cashing, money transfer and money-order services worldwide. Complainant registered the MOMENTUM mark with the U.S. Patent and Trademark Office on August 28, 2001 (Reg. No. 2,482,709).
Respondent, McWatson GmbH, registered the <momentumcard.com> domain name on February 18, 2003. Respondent is not using the <momentumcard.com> domain name.
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. 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 and is being used in bad faith.
Complainant offers its USPTO registration to demonstrate
rights in the MOMENTUM mark. The Panel
finds that Complainant has established rights in the MOMENTUM mark pursuant to
Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”); Vivendi Universal Games v. XBNetVentures Inc., FA 198803
(Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations
establish Complainant's rights in the BLIZZARD mark.”).
The Panel finds that the <momentumcard.com>
domain name is confusingly similar to Complainant’s MOMENTUM mark. The only difference is the addition of the
word “card,” which does not significantly distinguish the domain name from the
mark. See Marriott Int’l, Inc. v.
Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the
respondent’s domain name <marriott-hotel.com> is confusingly similar to
the complainant’s MARRIOTT mark); PG&E Corp. v. Anderson, D2000-1264
(WIPO Nov. 22, 2000) (finding that “Respondent does not by adding the common
descriptive or generic terms ‘corp’, ‘corporation’ and ‘2000’ following ‘PGE’,
create new or different marks in which it has rights or legitimate interests,
nor does it alter the underlying [PG&E] mark held by Complainant”).
The Panel finds that Complainant has established Policy ¶ 4(a)(i).
Respondent is not using the <momentumcard.com>
domain name. Additionally, Respondent
has not informed the Panel of its intended use for the disputed domain
name. Accordingly, the Panel finds that
there is no evidence that overcomes Complainant’s assertion that Respondent
lacks rights or legitimate interests in the domain name. Respondent non-use of the domain name, on
its face, is neither a bona fide offering of a good or service pursuant to
Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy
¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero,
D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests
where the respondent failed to submit a response to the complaint and had made
no use of the domain name in question); Melbourne
IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or
legitimate interests in the domain name where there is no proof that the
respondent made preparations to use the domain name or one like it in
connection with a bona fide offering of goods and services before notice
of the domain name dispute, the domain name did not resolve to a website, and
the respondent is not commonly known by the domain name).
The Panel finds there is nothing in the record, including
the WHOIS registration information, which demonstrates that Respondent is
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); Gallup, Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not
have rights in a domain name when the respondent is not known by the mark).
The Panel finds that Complainant has established Policy ¶ 4(a)(ii).
In the absence of a Response that demonstrates Respondent’s
intended use for the domain name, the Panel holds that Respondent’s three-year
non-use of the disputed domain name constitutes passive holding. The Panel finds that Respondent has held and
not used the domain name to such an extent that it has exhibited bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See Telstra Corp. v.
Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible,
in certain circumstances, for inactivity by the Respondent to amount to the
domain name being used in bad faith.”); DCI
S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding
that the respondent’s passive holding of the domain name satisfies the
requirement of ¶ 4(a)(iii) of the Policy).
The Panel finds that Complainant has established 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 <momentumcard.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 23, 2006
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