DECISION
Wheels Financial Group, Inc. (d/b/a "LoanMart") v. Theodor Hansen
Claim Number: FA2310002065999
PARTIES
Complainant is Wheels Financial Group, Inc. (d/b/a "LoanMart") ("Complainant"), represented by Christel E. Harlacher of McGuireWoods LLP, Virginia, USA. Respondent is Theodor Hansen ("Respondent"), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loanmartloan.com>, registered with Internet Domain Service BS Corp.
PANEL
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.
Hon. Karl v. Fink (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on October 12, 2023; Forum received payment on October 12, 2023.
On October 16, 2023, Internet Domain Service BS Corp confirmed by e-mail to Forum that the <loanmartloan.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 18, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 7, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@loanmartloan.com. Also on October 18, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, 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
Complainant Wheels Financial Group (d/b/a, and hereinafter, "LoanMart") is a top leader in the financial services industry, particularly in connection with high-growth auto title lending and servicing.
Respondent's <loanmartloan.com> domain name is identical or confusingly similar to Complainant's LOANMART marks. The <loanmartloan.com> domain name incorporates the LOANMART marks in its entirety with the only difference being the addition of the word "loan" to the end of the word "loanmart."
Respondent lacks rights or legitimate interests in the <loanmartloan.com> domain name registered on June 8, 2023. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the LOANMART marks. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services.
Respondent registered and uses the <loanmartloan.com> domain name in bad faith. Respondent's website disrupts Complainant's business as Respondent registered the disputed domain name to intentionally mislead consumers into thinking Respondent is affiliated with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <loanmartloan.com> domain name.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
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.
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 draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint").
Identical and/or Confusingly Similar
Complainant argues that its registration of the LOANMART marks with the USPTO (e.g. Reg. No. 4,087,236 registered January 17, 2012) establishes Complainant's rights to the mark, as "the registration of a mark with a legitimate governmental authority is sufficient under the Policy to allow a rebuttable presumption of rights in the mark." See Target Brands, Inc. v. JK Internet Services, FA410000349108 (Forum Dec. 14, 2004). The Panel finds that Complaint has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent's <loanmartloan.com> domain name is identical or confusingly similar to Complainant's LOANMART mark. Under Policy ¶ 4(a)(i), adding a descriptive term along with the ".com" gTLD to a mark does not differentiate the domain name from the mark it incorporates. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) ("Respondent's <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant's ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms "investor relations," and the ".com" gTLD, but these additions are insufficient to distinguish the Domain name from complainant's mark for the purposes of Policy ¶ 4(a)(i)."). The Panel finds that Respondent's domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Rights or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014)"(Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests"). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent has no relationship, affiliation, connection, endorsement or association with Complainant, Respondent has never requested or received any authorization, permission or license from Complainant to use the LOANMART marks, and Complainant has not authorized or licensed Respondent to use the LOANMART marks in a domain name.
Complainant also argues that Respondent is using the domain name to divert internet users to Respondent's own website, which appears to advertise, promote, sell, and offer for sale services that compete directly with Complainant's services. See Nat'l Football League Players Ass'n, Inc. v. Terry Cintra, FA1301001478213 (Forum Jan. 31, 2013) ("The operation of a competing business selling competing products via a confusingly similar at-issue domain name is evidence of a Respondent's lack of rights and legitimate interests in such domain name"). The Panel finds that Respondent has no rights or legitimate interests in the domain name pursuant to Policy ¶¶ 4(a)(ii) and 4(c)(i), (ii) and (iii).
Complainant has proved this element.
Registration and Use in Bad Faith
Complainant argues that Respondent's use of the domain to divert to its own webpages unsuspecting internet users looking for Complainant LoanMart's legitimate websites constitutes bad faith under the Policy. See Wheels Financial Group, Inc. (d/b/a "LoanMart") v. Theodor Hansen, FA2308002058829 (Forum Sept. 26, 2023) (finding that respondent's use of the domain was an "attempt to profit from the confusion [ ] caused among Internet users as to the possibility of Complainant's association with the domain"). The Panel finds this is evidence of bad faith.
Complainant argues that it is improbable that Respondent could have been unaware of the potential risk that some consumers would associate the disputed domain name with Complainant's LOANMART Marks and legitimate website. See State Farm Mutual Automobile Insurance Company v. Ellen Lee, FA0409000335445 (Forum Nov. 3, 2004) (the Panel finding it "implausible that Respondent could have been unaware of the risk that consumers might associate 'statefarmtrafficschool' with State Farm, the provider of automobile insurance"). There is no possible use that Respondent could make of this domain name that would not be in bad faith. As held in the case of Morgan Stanley v. Zhang Wei FA 2037470 (Forum Apr. 27, 2023):
When a mark is especially well known, Panels have held that no possible use of the mark by someone other than its owner can be in good faith. See Harrods Ltd. v. Harrod's Closet, D2001-1027 (WIPO Sept. 28, 2001) (finding that where a mark is so "obviously connected with well-known products," its very use by someone with no connection to these products can evidence opportunistic bad faith); see also Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) ("[T]he fact that Respondent chosen [sic] to register a well-known mark to which [it] has no connections or rights indicates that [it] was in bad faith when registering the domain name at issue.").
The Panel finds that Respondent registered and uses the domain name in bad faith.
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <loanmartloan.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
November 16, 2023
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