Dollar Financial Group, Inc. v. Matters of the Love c/o Money Mart Co., Ltd.
Claim Number: FA0703000945060
Complainant is Dollar Financial Group, Inc. (“Complainant”), represented by Hilary B. Miller, 112 Parsonage Road, Greenwich, CT 06830-3942, USA. Respondent is Matters of the Love c/o Money Mart Co., Ltd. (“Respondent”), 158 N. Santa Clara, New Braunfels City, New Braunfels City 78130, US.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <money-mart.net>, registered with Onlinenic, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of 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
On
On March 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 19, 2007 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@money-mart.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <money-mart.net> domain name is confusingly similar to Complainant’s MONEY MART mark.
2. Respondent does not have any rights or legitimate interests in the <money-mart.net> domain name.
3. Respondent registered and used the <money-mart.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dollar Financial Group, Inc., holds a trademark
registration with the United States Patent and Trademark Office (“USPTO”) for
the MONEY MART mark (i.e. Reg. No. 2,244,158 issued
Respondent registered the <money-mart.net>
domain name on
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 has established rights in the MONEY MART mark through registration with the USPTO and the CIPO. See 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.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <money-mart.net> domain name is confusingly similar to Complainant’s MONEY MART mark because it uses Complainant’s mark in its entirety and merely adds a hyphen to separate the two words of the mark. The Panel finds that this minor addition does not alter the mark sufficiently to negate the confusingly similar aspects of Respondent’s disputed domain name under Policy ¶ 4(a)(i). See Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”); see also Gen. Elec. Co. v. Bakhit, D2000-0386 (WIPO June 22, 2000) (finding that placing a hyphen in domain name between “General” and “Electric” is confusingly similar to the complainant’s mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or
legitimate interests in the <money-mart.net>
domain name. Complainant’s assertion
establishes a prima facie case which shifts the burden to Respondent to
prove that it has rights or legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(a)(ii). See Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding
that once the complainant asserts that the respondent has no rights or
legitimate interests with respect to the domain, the burden shifts to the
respondent to provide “concrete evidence that it has rights to or legitimate
interests in the domain name at issue”); see also G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum
Panels have held that the failure to respond to the Complaint not only fails to establish Respondent’s burden, but may also be considered evidence that Respondent lacks rights or legitimate interests in the domain name. See, e.g., 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.”). The Panel assumes that Respondent has no rights or legitimate interests here because Respondent has failed to respond to the Complaint. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). However, the Panel will still consider all available evidence in determining whether Respondent has rights or legitimate interests in the <money-mart.net> domain name under Policy ¶ 4(c).
Complainant contends that Respondent is using the <money-mart.net> domain name to
redirect Internet users to Respondent’s website displaying advertisements and
offering advertisement space for sale.
Respondent’s use of the <money-mart.net>
domain name to redirect Internet users to Respondent’s website displaying
advertisements is not a use in connection with a bona fide offering of
goods and services under Policy ¶ 4(c)(i), or a legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii). See
De La Rue Holdings PLC v. Video Images Prods. L.L.C., FA 196054 (Nat. Arb. Forum Oct. 27, 2003) (finding that
the respondent was not using the <delaru.com> domain name for a bona
fide offering of goods or services or a legitimate noncommercial or fair
use because the respondent was using the domain name to “subject unsuspecting
users to a barrage of unsolicited [pop-up] advertisements,” presumably for
commercial benefit); see also Wells
Fargo & Co. v. Nadim, FA 127720 (Nat. Arb. Forum Nov. 29, 2002)
(finding that the respondent’s use of the complainant’s WELLS FARGO mark to
redirect Internet users to a domain name featuring magazine subscriptions was
neither a bona fide offering of goods or services nor a legitimate
noncommercial or fair use of the domain name).
Additionally, Respondent offers no evidence and none is present in the record to indicate Respondent is commonly known by the <money-mart.net> domain name. Respondent’s WHOIS information identifies Respondent as “Matters of the Love c/o Money Mart Co., Ltd.” While Respondent’s name includes the “Money Mart” mark, there is no evidence presented in the record to indicate Respondent is commonly known by the MONEY MART mark. Therefore, the Panel finds that Respondent has failed to establish rights or legitimate interests in the <money-mart.net> domain name under Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the 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 the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also Yahoo! Inc. v. Dough, FA 245971 (Nat. Arb. Forum May 5, 2004) (finding that although “the WHOIS information for the <yasexhoo.com> domain name states that the registrant is YASEXHOO . . . this alone is insufficient to show that Respondent is commonly known by the domain name.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <money-mart.net> domain name to
redirect Internet users to Respondent’s website displaying advertisements and
selling space on the website for advertisements. The Panel finds that such use constitutes
disruption and is evidence of bad faith under Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO
Respondent is using the <money-mart.net>
domain name to display advertisements and sell advertisement space on Respondent’s
website for the assumed profit of Respondent.
The Panel finds that because Respondent’s domain name is confusingly
similar to Complainant’s MONEY MART mark, consumers may become confused as to
Complainant’s affiliation with the website.
Presumably, Respondent is profiting from this confusion. As a result, Respondent’s use of the <money-mart.net> domain name to
redirect Internet users to a website displaying advertisements and selling
advertisement space constitutes bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). See Philip Morris
Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the
respondent’s registration of an infringing domain name to redirect Internet
users to banner advertisements constituted bad faith use of the domain name); see
also Bama Rags, Inc. v. Zuccarini,
FA 94381 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <money-mart.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 8, 2007
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