Moneytree, Inc. v. Hostmaster Perfect Loan
Claim Number: FA0610000811689
PARTIES
Complainant is Moneytree, Inc.,
Seattle, WA, (“Complainant”) represented by Kathleen T. Petrich of Stokes
Lawrence, P.S. Respondent is Hostmaster Perfect Loan, Salt Lake
City, UT, (“Respondent”) of Hostmaster Perfect Loan, P.O Box
711910, Salt Lake City, UT, 84171.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <moneytreeloans.us>,
registered with Go Daddy Software, Inc.
PANEL
The undersigned certifies that she has acted independently and
impartially and that to the best of her knowledge she has no known conflict in
serving as Panelist in this proceeding.
Hon. Carolyn Marks Johnson sits as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically October 2, 2006; the Forum received a hard copy of
the Complaint October 4, 2006.
On October 3, 2006, Go Daddy Software, Inc. confirmed by e-mail to the
Forum that the <moneytreeloans.us>
domain name is registered with Go Daddy Software, Inc. and that
Respondent is the current registrant of the name. Go Daddy Software, Inc. verified that Respondent is bound by the Go
Daddy Software, Inc. registration agreement and thereby has agreed to resolve
domain-name disputes brought by third parties in accordance with the U. S.
Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On October 4, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”) setting a deadline
of October 24, 2006, by which Respondent could file a Response to the
Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of
the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On October 30, 2006, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn
Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following allegations in this proceeding:
1. The domain name that Respondent registered, <moneytreeloans.us>, is confusingly similar to Complainant’s MONEY TREE mark.
2.
Respondent has no rights to or legitimate interests in
the <moneytreeloans.us> domain name.
3.
Respondent registered and used the <moneytreeloans.us>
domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Moneytree, Inc., offers retail
financial services including payday lending, mortgage services, check cashing
and other financial services.
Complainant holds registrations with the Untied States Patent and
Trademark Office (“USPTO”) for the MONEY TREE mark (Reg. No. 2,166,890 issued
June 23, 1998; Reg. No. 2,976,195 issued July 26, 2005). Complainant utilizes the MONEY TREE mark in
connection with it financial services business. Complainant has also registered the <moneytreeinc.com> and
<moneytreemortgage.com> domain names in order to offer information about
its services to Internet users.
Respondent registered the disputed domain
name February 5, 2004. Respondent is
using the disputed domain name to redirect Internet users to Respondent’s
website which appears to be a commercial website offering financial services in
competition with Complainant. For
example, Respondent’s website includes a link for a “quick loan application.” Respondent’s website also features links to
other third-party websites offering financial services in competition with
Complainant. Those links include
“interest rates,” “bad credit refinancing” and “consolidate bills.”
DISCUSSION
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(f), 14(a) and 15(a) of the Rules and
will draw such inferences as the Panel 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 Complainant to 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 the Respondent is identical or
confusingly similar to a trademark or service mark in which the 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Complainant established using extrinsic proof
in this proceeding that it has rights in the MONEY TREE mark through its USPTO
registrations. This is sufficient to
meet the requirements of Policy ¶ 4(a)(i).
See Janus Int’l
Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel
decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable
presumption that the mark is inherently distinctive."); see also 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.”).
The disputed domain name that Respondent
registered, <moneytreeloans.us>, is confusingly similar to Complainant’s
MONEY TREE mark. The disputed domain
name includes Complainant’s mark in its entirety and adds the term “loans” and
the generic top-level domain “.us.” The
term “loans” is descriptive of Complainant’s financial services and does not
distinguish the disputed domain name from Complainant’s mark. Moreover, since all domain names require a
generic top-level domain, the addition of “.us” does not make the disputed
domain name distinct from Complainant’s mark.
The Panel finds that the disputed domain name is confusingly similar to
Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO
Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a
Complainant’s registered mark is sufficient to establish identity [sic] or
confusing similarity for purposes of the Policy despite the addition of other
words to such marks.”); see also Sony Kabushiki Kaisha v. Inja, Kil,
D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an
ordinary descriptive word . . . nor the suffix ‘.com’
detract from the overall impression of the dominant part of the name in each
case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Complainant satisfied
Policy ¶ 4(a)(i).
Complainant established that it has rights to
and legitimate interests in the mark contained in its entirety within the
disputed domain name. Complainant
asserts that Respondent lacks such rights to or legitimate interests in the
disputed domain name, making a prima facie case for purposes of the
Policy. Complainant having established
a prima facie case, the burden shifts to Respondent to demonstrate that
it does have rights to or legitimate interests pursuant to Policy ¶ 4(a)(ii).
Respondent failed to submit a Response in
this proceeding, thus depriving the Panel of the opportunity to review
arguments and evidence that might demonstrate Respondent’s rights and
legitimate interests. Based on Respondent’s
failure to submit a Response, the Panel presumes that Respondent lacks rights
to or legitimate interests in the disputed domain name. However, the Panel examines the available
evidence to determine whether Respondent has rights to or legitimate interests
in the disputed domain name pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s
Submission constitutes a prima facie case under the Policy, the burden
effectively shifts to Respondent. Respondent’s failure to respond means that
Respondent has not presented any circumstances that would promote its rights or
legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see
also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Complainant established its rights to the MONEY
TREE mark and asserts without contradiction that Respondent is in no way
affiliated with Complainant and has no permission to use Complainant’s MONEY
TREE mark. The Panel finds no available
evidence that Respondent is the owner or beneficiary of a trade or service mark
that is identical to the <moneytreeloans.us> domain name as required
by Policy ¶ 4(c)(i). See Meow Media Inc. v. John Basil a/k/a American Software Factory Corp.,
Inc., FA 113280 (Nat. Arb.
Forum Aug. 20, 2002) (finding no evidence that Respondent was the owner or
beneficiary of a mark that is identical to the <persiankitty.com> domain
name); see also Pepsico, Inc. v. Becky a/k/a Joe Cutroni, FA 117014 (Nat. Arb. Forum Sept. 3, 2002)
(holding that because Respondent did not own any trademarks or service marks
reflecting the <pepsicola.us> domain name, it had no rights or legitimate
interests pursuant to UDRP ¶ 4(c)(i)).
Respondent is not using the <moneytreeloans.us>domain name in connection with a bona fide offering of goods or services and is not making a legitimate noncommercial or fair use as required by Policy ¶¶ 4(c)(ii) and (iv). Respondent’s website appears to operate as a commercial website offering financial services in direct competition with Complainant. Respondent is also using the disputed domain name to redirect Internet users to its website which features links to commercial websites offering financial service products in direct competition with Complainant. Presumably, Respondent receives pay-per-click referral fees from those links. The Panel finds that such use is not within the scope of Policy ¶¶ 4(c)(ii) and (iv), and thus, does not indicate that Respondent has rights or legitimate interests in the disputed domain name. See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that the respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to the complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Additionally, no available
evidence suggests that Respondent is commonly known by the <moneytreeloans.us>
domain name. Respondent’s WHOIS
information identifies Respondent as “Hostmaster Perfect Loan,” a name with no
apparent relationship to the disputed domain name. Thus, the Panel finds that no evidence suggests that Respondent
is commonly known by the disputed domain name as contemplated by Policy ¶
4(c)(iii). 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 UDRP ¶ 4(c)(ii)
does not apply); see also Am. W. Airlines, Inc. v.
Paik, FA 206396 (Nat. Arb. Forum Dec. 22,
2003) (“Respondent has registered the domain name under the name ‘Ilyoup
Paik a/k/a David Sanders.’ Given the
WHOIS domain name registration information, Respondent is not commonly known by
the [<awvacations.com>] domain name.”).
The Panel finds that Complainant satisfied
Policy ¶ 4(a)(ii).
Respondent is using the <moneytreeloans.us> domain name to redirect Internet users to Respondent’s commercial website also featuring links to commercial third-party websites in competition with Complainant. Internet users seeking Complainant’s genuine websites at the <moneytreeinc.com> and <moneytreemortgage.com> domain names may find themselves redirected to Respondent’s website. The misdirected Internet users may then do business with Respondent or follow one of the third-party links and do business with another one of Complainant’s competitors. The Panel finds that such use disrupts Complainant’s business and is evidence of bad faith pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of UDRP ¶ 4(b)(iii)).
The disputed domain
name, <moneytreeloans.us>, is confusingly similar to Complainant’s
MONEY TREE mark. Internet users seeking
Complainant’s websites at the
<moneytreeinc.com> and <moneytreemortgage.com> domain names
may mistakenly combine the term “loans” with Complainant’s mark in an Internet
browser or search engine and find themselves at Respondent’s website. Because of the confusing similarity between
the disputed domain name and Complainant’s mark, combined with the content of
Respondent’s website, Internet users may mistakenly believe that Respondent’s
website is affiliated with or sponsored by Complainant. Respondent is capitalizing on this
confusion, presumably collecting pay-per-click referral fees from misdirected
Internet users. The Panel finds that
such use is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although
Complainant’s principal website is <century21.com>, many Internet users
are likely to use search engines to find Complainant’s website, only to be
mislead to Respondent’s website at the <century21realty.biz> domain name,
which features links for competing real estate websites. Therefore, it is likely that Internet users
seeking Complainant’s website, but who end up at Respondent’s website, will be
confused as to the source, sponsorship, affiliation or endorsement of
Respondent’s website.”); see also 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.’”).
The Panel finds that Complainant satisfied Policy
¶ 4(a)(iii).
DECISION
Complainant having established all three
elements required under the usTLD Policy, the Panel concludes that relief shall
be GRANTED.
Accordingly, it is Ordered that the <moneytreeloans.us> domain name to TRANSFERRED from
Respondent to Complainant.
Hon. Carolyn Marks
Johnson, Panelist
Dated: November 13, 2006.
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