Cash America International, Inc. v. Janet Melendez
Claim Number: FA0704000954073
Complainant is Cash America International, Inc. (“Complainant”), represented by Robert
J. Ward, of Gardere Wynne Sewell LLP,
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <cashamericaadvance.com>, registered with Go Daddy Software, 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 5, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 6, 2007.
On April 5, 2007, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <cashamericaadvance.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 April 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 30, 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@cashamericaadvance.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 9, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 <cashamericaadvance.com> domain name is confusingly similar to Complainant’s CASH AMERICA mark.
2. Respondent does not have any rights or legitimate interests in the <cashamericaadvance.com> domain name.
3. Respondent registered and used the <cashamericaadvance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cash America International, Inc., provides secured non-resource loans to individuals
throughout the
Complainant has registered the CASH AMERICA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,481,033 issued March 15, 1988).
Respondent registered the <cashamericaadvance.com> domain name on April 3, 2004. Respondent is using the disputed domain name to redirect Internet users to a competing loan services website. This website invites Internet users to enter their personal information and click “apply now.” Upon Complainant’s information and belief, Respondent is receiving click-through fees for diverting Internet users to this third-party loan services website.
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 sufficiently demonstrated its rights in the
CASH AMERICA mark under Policy ¶ 4(a)(i) by submitting
evidence of its registration of the mark with the USPTO. See
Miller Brewing
By merely adding the term “advance” to Complainant’s registered CASH AMERICA mark in the <cashamericaadvance.com> domain name, a term related to Complainant’s loan services business, Respondent has failed to sufficiently distinguish the disputed domain name from the mark. As a result, the Panel finds the disputed domain name to be confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). See Reed Elsevier Inc. v. Christodoulou, FA 97321 (Nat. Arb. Forum June 26, 2001) (finding that the <legallexis.com> and <legallexus.com> domain names were confusingly similar to the complainant’s LEXIS mark because the term “legal” described the type of services the complainant offered under the LEXIS mark); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent lacks rights and legitimate interests in the <cashamericaadvance.com> domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires that the complainant must show that the respondent has no rights to or legitimate interests in the subject domain name and that once the complainant makes this showing, the burden of production shifts to the respondent to rebut the complainant’s allegations); see also SEMCO Productions, LLC v. dmg world media (uk) ltd, FA 913881 (Nat. Arb. Forum Apr. 9, 2007) (concluding that under Policy ¶ 4(a)(ii) and the factors listed in Policy ¶ 4(c), a complainant must first make a prima facie case that the respondent has not used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, that the respondent is not commonly known by the disputed domain name, and that the respondent is not making a legitimate noncommercial or fair use of the disputed domain name before the burden shifts to the respondent to show otherwise).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights to or legitimate interests in the <cashamericaadvance.com>
domain name. See Geocities v. Geocities.com, D2000-0326 (WIPO June 19, 2000)
(finding that the respondent has no rights or legitimate interests in the
domain name because the respondent never submitted a response or provided the
panel with evidence to suggest otherwise); 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.”). However, the Panel
will now examine the record to determine if Respondent has rights or legitimate
interests under Policy ¶ 4(c).
Respondent has registered the domain name under the name “Janet Melendez,” and there is no other evidence
in the record suggesting that Respondent is commonly known by the <cashamericaadvance.com>
domain name. As a result, Respondent has
not established rights or legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See The Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum
July 7, 2006) (concluding that the respondent was not commonly known by the
disputed domain names where the WHOIS information, as well as all other
information in the record, gave no indication that the respondent was commonly
known by the disputed domain names, and the complainant had not authorized the
respondent to register a domain name containing its registered mark); see also M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding
that the respondent was not commonly known by the <cigaraficionada.com>
domain name under Policy ¶ 4(c)(ii) based on the WHOIS
information and other evidence in the record).
Moreover, Respondent’s <cashamericaadvance.com> domain name,
which is confusingly similar to Complainant’s CASH AMERICA mark, resolves to a
website in direct competition with Complainant.
In Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003), respondent registered the <wwwzyban.com>
domain name and was redirecting Internet users to a pharmaceutical site
offering products that competed with Complainant. The panel held that the respondent was not
using the domain name within the parameters of Policy ¶ 4(c)(i)
or (iii).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Because Respondent is using a domain name confusingly similar to Complainant’s CASH AMERICA mark to redirect Internet users to a competing website, Respondent has registered the <cashamericaadvance.com> domain name for the primary purpose of disrupting Complainant’s business pursuant to Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Industries, Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 23, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant).
Furthermore, Respondent has registered and is using the <cashamericaadvance.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iv). Respondent is either
receiving click-through fees for diverting Internet users to a competing
website or operating the competing website himself, and profiting in the
process. Regardless of its means of
commercially benefiting from the <cashamericaadvance.com>
domain name, Respondent is taking advantage
of the confusing similarity between the domain name and Complainant’s CASH
AMERICA mark in order to profit from the goodwill associated with the mark in
violation of Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat.
Arb. Forum May 25, 2006) (finding that the respondent’s use of the
<arizonashuttle.net> domain name, which contained the complainant’s
ARIZONA SHUTTLE mark, to attract Internet traffic to Respondent’s website
offering competing travel services violated Policy ¶ 4(b)(iv)); see also Dell Inc. v. Innervision Web Solutions, FA
445601 (Nat. Arb. Forum May 23, 2005) (finding evidence of bad faith under
Policy ¶ 4(b)(iv) where the respondent was using the
<dellcomputerssuck.com> domain name to divert Internet users to
respondent’s website offering competing computer products and services).
The Panel concludes that Complainant has satisfied 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 <cashamericaadvance.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: May 21, 2007
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