Golden Title Loans, LLC dba 745Cash v. roylee
Claim Number: FA1505001618801
Complainant is Golden Title Loans, LLC dba 745cash (“Complainant”), Tennessee, USA. Respondent is roylee (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <745-cash.com>, registered with DYNADOT LLC; Dynadot, 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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2015; the Forum received payment on May 19, 2015.
On May 11, 2015, DYNADOT LLC; Dynadot, LLC confirmed by e-mail to the Forum that the <745-cash.com> domain name is registered with DYNADOT LLC; Dynadot, LLC and that Respondent is the current registrant of the name. DYNADOT LLC; Dynadot, LLC has verified that Respondent is bound by the DYNADOT LLC; Dynadot, 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 May 26, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 15, 2015 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@745-cash.com. Also on May 26, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On June 18, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant made the following contentions:
1. Policy ¶ 4(a)(i)
a. Complainant has common law rights in the 745-CASH mark dating back to its first use in commerce on July 15, 2005.
b. Respondent’s <745-cash.com> domain name is identical to Complainant’s 745-CASH mark because it is differentiated by only the addition of the generic top level domain (“gTLD”) “.com.”
2. Policy ¶ 4(a)(ii)
a. Respondent is not commonly known by the disputed domain name as the WHOIS information lists “roylee” as Registrant. Respondent has not submitted any further evidence to indicate being commonly known by the disputed domain name.
b. Respondent lacks rights or legitimate interests in the domain name because it offers the domain for sale.
c. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because it has engaged in typosquatting.
3. Policy ¶ 4(a)(iii)
a. Respondent registered the domain name for the purpose of selling it to Complainant, which constitutes bad faith.
b. Respondent’s registration of the disputed domain name constitutes typo-squatting, which is bad faith, in and of, itself.
A. Respondent
Respondent failed to submit a formal Response in this proceeding.
1. Complainant is a United States company engaged in the business of loans and related services.
2. Complainant has common law rights in the 745-CASH mark dating back to its first use in commerce on July 15, 2005.
3. The <745-cash.com> domain name was created on September 6, 2013. Respondent presently offers the domain name for sale, has engaged in typosquatting, is using the domain name to divert potential business away from Complainant to Respondent and is re-directing hits on its website to competitors of Complainant.
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.”).
The first issue that arises is whether Complainant has a trademark or service mark on which it can rely. Complainant does not have a registration of its 745-CASH mark with a registration authority. However, past panels have found that Policy ¶ 4(a)(i) does not require trademark registration if a Complainant can demonstrate having common law rights. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark).
Complainant submits that it has rights in the 745-CASH mark dating back to its first use in commerce on July 15, 2005. In order to have common law rights, a complainant must show that the mark has secondary meaning. Relevant evidence of secondary meaning includes continuous and ongoing use of a mark, holding of a domain name identical to the mark, or using the mark in commerce before a disputed domain name is created. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (concluding that the complainant had established common law rights in the ARTISTIC PURSUIT mark by using the mark in commerce before Respondent registered the disputed domain name). Complainant has provided evidence of secondary meaning in Exhibit 1, displaying Complainant’s business registration with the state of Tennessee, showing use of the 745-CASH mark since July 2005 and in Exhibit 4, showing the creation date as March 30, 2004 of Complainant’s own website <745cash.com>. Complainant also urges that its business phone number is 745-CASH. As the Panel finds that Complainant’s evidence is sufficient to establish secondary meaning, the Panel finds that Complainant has common law trademark rights in the 745-CASH mark according to Policy ¶ 4(a)(i).
The second issue that arises is whether the disputed <745-cash.com> domain name is identical or confusingly similar to Complainant’s 745-CASH mark. Complainant alleges that Respondent’s <745-cash.com> domain name is identical to Complainant’s 745-CASH mark because it is differentiated by only the addition of the gTLD “.com.” Past panels have found that such a change of a mark in a domain name results in a domain name that is identical to the mark. See Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27, 2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Accordingly, the Panel finds that Respondent’s <745-cash.com> domain name is identical to Complainant’s 745-CASH mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s 745-CASH mark and to use it in its domain name which is identical to the mark;
(b) Respondent registered the disputed domain name on September 6, 2013;
(c) Respondent presently offers the domain name for sale, has engaged in typosquatting, is using the domain name to divert potential business away from Complainant to Respondent and is re-directing hits on its website to competitors of Complainant.
(d) Respondent engaged in the aforementioned activities without the permission or authority of Complainant;
(e) Complainant submits that Respondent is not commonly known by the disputed domain name. The Panel notes that the WHOIS information lists “roylee” as Registrant and that Respondent has failed to provide further evidence to indicate being commonly known by the disputed domain name. Past panels have found such a lack of evidence sufficient to show that a respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). Accordingly, the Panel finds that Respondent is not commonly known by the <745-cash.com> domain name under Policy ¶ 4(c)(ii);
(f) Complainant submits that Respondent lacks rights or legitimate interests in the <745-cash.com> domain name because Respondent offers the domain for sale. Complainant has provided evidence of Respondent’s offer for sale in Exhibit 2. Past panels have found a willingness to sell a disputed domain to a complainant sufficient to establish a lack of Respondent’s rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)). Accordingly, the Panel finds that Respondent lacks rights or legitimate interests in the <745-cash.com> domain name under Policy ¶ 4(a)(ii);
(g) Complainant further submits that Respondent also lacks rights and legitimate interests in the disputed domain name because it has engaged in typosquatting. Complainant urges that Respondent’s <745-cash.com> domain name takes advantage of a common typographical error in accessing Complainant’s own website <745cash.com>. Prior panels have found that a respondent that engages in typosquatting fails to have rights and legitimate interests in a disputed domain name. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). As the Panel finds that Respondent has engaged in typosquatting, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant alleges that Respondent registered the domain name for the purpose of selling it to Complainant. Complainant has provided evidence of Respondent’s intent to sell in Exhibit 2. The evidence is that Respondent wrote to Complainant on May 8, 2015 saying: “Sir I do not know why this domain will be complaint. I own this 2 years If you want it I can sell this to you $5000 you can get it Thank you sir Please.” Past panels have found that when a respondent makes specific offers of sale to complainants, as Respondent has done in this case, such behavior is sufficient to show bad faith under Policy ¶ 4(b)(i). See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Secondly, Complainant alleges that Respondent registered and operates the disputed domain name in bad faith because it has engaged in typosquatting. Complainant urges that Respondent’s <745-cash.com> domain name takes advantage of a common typographical error in accessing Complainant’s own website <745cash.com>. Past panels have found typosquatting, on its own, to provide sufficient evidence of bad faith under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). As the Panel finds that Respondent has engaged in typosquatting, the Panel finds Respondent registered and has used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Thirdly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed <745-cash.com> domain name using the 745-CASH mark and in view of the conduct that Respondent engaged in when using the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
In particular, the evidence is that Respondent presently offers the domain name for sale, has engaged in typosquatting, is using the domain name to divert potential business away from Complainant to Respondent and is re-directing hits on its website to competitors of Complainant.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <745-cash.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC,
Panelist
Dated: June 23, 2015
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