Moneytree, Inc. v. Vladimir Sadovskiy / MPS
Claim Number: FA1408001576516
Complainant is Moneytree, Inc. (“Complainant”), represented by Kathleen T. Petrich of Miller Nash LLP, Washington, USA. Respondent is Vladimir Sadovskiy / MPS (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mymoneytreefinancial.com>, registered with GODADDY.COM, LLC.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 22, 2014; the National Arbitration Forum received payment on August 22, 2014.
On August 25, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <mymoneytreefinancial.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 August 27, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 16, 2014 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@mymoneytreefinancial.com. Also on August 27, 2014, 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, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 19, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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" 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, 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.
Complainant
Complainant argues that it uses the MONEY TREE mark in its business to provide payday loans and other consumer loans. The MONEY TREE mark is registered with the United States Patent and Trademark Office ("USPTO"). The <mymoneytreefinancial.com> domain name is confusingly similar to the MONEY TREE mark because it merely adds generic and descriptive terms to the mark.
Respondent has no rights or legitimate interests in the <mymoneytreefinancial.com> domain name. Respondent is not known by the domain name, and the website is being used by Respondent to offer alternative financing schemes.
Respondent registered and used the domain name in bad faith. The domain name is competitive and disruptive, creates a likelihood of confusion as to Complainant’s relationship with the mark, and Respondent knew of the MONEY TREE mark when registering the domain name.
Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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."
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(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.”).
Complainant claims that its MONEY TREE mark is used to provide payday loans and other consumer loans. Complainant claims the MONEY TREE mark is registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 2,166,890, registered June 23, 1998). The Panel finds that this registration satisfies the Policy ¶ 4(a)(i) required showing of rights. See Amusement Art, LLC v. zarathustra james / bomit, FA 1536201 (Nat. Arb. Forum Jan. 29, 2014) (“The Panel observes that Respondent appears to reside and operate within the United States. Therefore, the Panel holds that Complainant’s registration of the MR BRAINWASH mark with the USPTO sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i).”).
Complainant argues that the <mymoneytreefinancial.com> domain name is confusingly similar to the MONEY TREE mark because it merely adds generic and descriptive terms to the mark. The domain name adds the generic top-level domain (“gTLD”) “.com,” the generic term “my,” and the descriptive term “financial.” These alterations are insufficient to defeat the confusing similarity between the MONEY TREE mark and the <mymoneytreefinancial.com> domain name. See Mead Johnson & Company, LLC v. noom kung, FA 1521731 (Nat. Arb. Forum Oct. 24, 2013) (holding that the addition of multiple terms, both generic and descriptive, do not negate a finding of confusing similarity). As such, the Panel finds Policy ¶ 4(a)(i) confusing similarity here.
Complainant has proven this element.
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent is not commonly known by this disputed <mymoneytreefinancial.com> domain name. The Panel notes the WHOIS information for this domain name lists “Vladimir Sadovskiy / MPS” as the registrant of record. The Panel finds that no information available here suggests Respondent has ever been commonly known as the <mymoneytreefinancial.com> domain name under Policy ¶ 4(c)(ii). See LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
Complainant further argues Respondent uses the disputed domain name to promote his own financing products. The Panel notes the <mymoneytreefinancial.com> domain name is being used to promote loan applications and information purporting to be “Money Tree Financial.” The Panel agrees that using this confusingly similar <mymoneytreefinancial.com> domain name to promote a competing loan services website is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant has proven this element.
Complainant argues that the disputed domain name is being used to disrupt Complainant’s MONEY TREE business via the promotion of Respondent’s own alleged money lending services. Respondent is using the domain name to promote lending services. In DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005), the panel agreed that there was a disruptive element to the use of a confusingly similar domain name to promote an independent and competing business. The Panel here similarly concludes Respondent is acting in Policy ¶ 4(b)(iii) bad faith.
Complainant further argues Internet users may be confused as to Complainant’s possible association with the money lending services purportedly offered through the <mymoneytreefinancial.com> domain name’s website, as Respondent is using the MONEY TREE mark to promote this independent operation. Respondent is profiting through the likelihood Internet users may mistakenly believe that Complainant and the MONEY TREE mark are associated with the <mymoneytreefinancial.com> domain name. The Panel concludes that Policy ¶ 4(b)(iv) bad faith is evidenced here. 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 the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)).
Complainant further argues that Respondent likely knew of Complainant’s rights in the mark at the time of domain registration. In Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Nat. Arb. Forum Feb. 6, 2014), the panel wrote, “The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.” Accordingly, based on the totality of the circumstances, the Panel concludes that Respondent had actual knowledge of Complainant’s rights at the time the disputed domain name was registered, and finds this is evidence of Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant has proven this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <mymoneytreefinancial.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: September 24, 2014
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