Dollar Financial Group, Inc. v. KWEB MKTG c/o Royal Habitat
Claim Number: FA0706000998614
Complainant is Dollar Financial Group, Inc. (“Complainant”), represented by Hilary
B. Miller, 112 Parsonage Road, Greenwich, CT 06830-3942. Respondent is KWEB MKTG c/o Royal
Habitat (“Respondent”), HSR 2nd Sector,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <moneymartloans.com>, registered with Wild West Domains, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 4, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 5, 2007.
On June 5, 2007, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <moneymartloans.com> domain name is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, 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 June 6, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 26, 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@moneymartloans.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 2, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <moneymartloans.com> domain name is confusingly similar to Complainant’s MONEY MART mark.
2. Respondent does not have any rights or legitimate interests in the <moneymartloans.com> domain name.
3. Respondent registered and used the <moneymartloans.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dollar Financial Group, Inc., is one of the largest international vendors of subprime consumer loans. Complainant has offered its financial services, including check cashing and electronic funds transferring, under the MONEY MART mark since at least 1984. Complainant holds trademark registrations for the MONEY MART mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,244,158 issued May 11, 1999) and the Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA297,783 issued December 7, 1984).
Respondent registered the <moneymartloans.com> domain name on June 11, 2006. Respondent is a direct competitor of Complainant and operates a website at the disputed domain name to market short-term consumer loans in competition with Complainant’s business.
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’s registration of the MONEY MART mark with the
USPTO and the CIPO sufficiently establishes its rights in the mark pursuant to
Policy ¶ 4(a)(i).
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
Respondent’s <moneymartloans.com> domain name is confusingly similar to Complainant’s MONEY MART mark, as it incorporates the entire mark and simply adds the word “loans” to the end of the mark, which is descriptive of Complainant’s business. Moreover, the addition of the generic top-level domain (“gTLD”) “.com” to the mark is irrelevant to the Policy ¶ 4(a)(i) analysis as a top-level domain is required of all domain names. Therefore, the <moneymartloans.com> domain name is confusingly similar to Complainant’s MONEY MART mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . .").
The Panel thus finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights or legitimate interests in the <moneymartloans.com> domain name. However, once Complainant establishes a prima facie case, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name. In the instant case, the Panel finds that Complainant has established a prima facie case. 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises the presumption that Respondent lacks rights or legitimate interests in the <moneymartloans.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). Nevertheless, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent’s WHOIS information does not indicate, and there is nothing further in the record to suggest, that Respondent is commonly known by the <moneymartloans.com> domain name. In addition, Respondent is not licensed or authorized by Complainant to use the MONEY MART mark in any way. Thus, Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See 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); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <moneymartloans.com> domain name resolves to a website offering consumer loan services, presumably for Respondent’s commercial benefit, in direct competition with Complainant. This use of the confusingly similar disputed domain name does not qualify as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); see also Clear Channel Commc’ns, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that the respondent, as a competitor of the complainant, had no rights or legitimate interests in a domain name that utilized the complainant’s mark for its competing website).
The Panel thus finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent is using the <moneymartloans.com> domain name to redirect Internet users to its own website, which offers services in direct competition with Complainant. This qualifies as a disruption of Complainant’s business and is evidence of bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the complainant's marks suggests that the respondent, the complainant’s competitor, registered the names primarily for the purpose of disrupting the complainant's business).
Furthermore, the Panel presumes that Respondent benefits
commercially when Internet users take advantage of the financial services
offered on its website that directly compete with Complainant. Therefore, Respondent is capitalizing on the
likelihood that users will confuse Respondent’s <moneymartloans.com> domain name and corresponding website as
being affiliated with Complainant’s MONEY MART mark. This is further evidence of bad faith
registration and use under Policy ¶ 4(b)(iv). See Amazon.com,
Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain
name at issue in direct competition with Complainant, and giving the impression
of being affiliated with or sponsored by Complainant, this circumstance
qualifies as bad faith registration and use of the domain name pursuant to
Policy ¶ 4(b)(iv).”); see also Am. Univ. v. Cook, FA 208629
(Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that
incorporates another's mark with the intent to deceive Internet users in regard
to the source or affiliation of the domain name is evidence of bad faith.”).
The Panel thus 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 <moneymartloans.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 11, 2007
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