Claim Number: FA0807001213424
Complainant is Cottonwood Financial Ltd. (“Complainant”), represented by Michael
R. Fitzpatrick, of Brennan,
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <cashstoreonline.com>, registered with Wild West Domains, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her 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 June 30, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 2, 2008.
On July 1, 2008, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <cashstoreonline.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 July 10, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 30, 2008 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@cashstoreonline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 5, 2008, 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 <cashstoreonline.com> domain name is confusingly similar to Complainant’s CASH STORE mark.
2. Respondent does not have any rights or legitimate interests in the <cashstoreonline.com> domain name.
3. Respondent registered and used the <cashstoreonline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cottonwood Financial Ltd, is a
Respondent registered the <cashstoreonline.com> domain name on June 11, 2006. Respondent’s disputed domain name resolves to a website which offers consumer lending services that directly compete 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 contends it has rights in its CASH STORE
mark. Complainant has produced
documentation evidencing the registration of its CASH STORE mark with the
USPTO. The Panel finds Complainant’s
registration of its mark with the USPTO is sufficient to establish
Complainant’s rights in its CASH STORE mark pursuant to Policy ¶ 4(a)(i). See
Respondent's <cashstoreonline.com> domain name contains Complainant’s CASH STORE mark with the additions of the generic term “online,” and the generic top-level domain “.com.” The Panel finds the additions of a generic term and top-level domain do not significantly alter Complainant’s CASH STORE mark. Rather, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark); 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 finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these allegations before the burden shifts to Respondent to prove it does have rights or legitimate interests in the disputed domain name. The Panel finds Complainant has presented an adequate prima facie case to support its allegations and Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent does not possess rights or legitimate interests in the disputed domain name. The Panel, however, will examine the record and determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). 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 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.”).
Respondent’s disputed domain name resolves to a website which offers consumer lending products and services that directly compete with Complainant’s business. The Panel finds Respondent’s use of the disputed domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also Or. State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of law-related books under Complainant's name is not a bona fide offering of goods and services because Respondent is using a mark confusingly similar to the Complainant's to sell competing goods.”).
Complainant asserts Respondent is not commonly known by the disputed domain name. The WHOIS information lists Respondent as “KWEB Mktg Service P Ltd.” Also, the record does not indicate Complainant has authorized Respondent to use its CASH STORE mark. Thus, the Panel finds Respondent is not commonly known by the <cashstoreonline.com> domain name pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); 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).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website
which offers products and services that directly compete with Complainant’s
consumer lending business. The Panel
finds Respondent’s use of the disputed domain name constitutes disruption and
is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered
the domain name in question to disrupt the business of the complainant, a
competitor of the respondent); see also
Respondent’s website resolving from the confusingly similar
disputed domain name offers consumer loan products and services that directly
compete with Complainant’s business.
Respondent presumably profits from this use of the disputed domain name
either in revenue or the form of click-through fees. Thus, the Panel finds Respondent’s use of the
disputed domain name is an attempt by Respondent to profit from the goodwill
associated with Complainant’s CASH STORE mark and constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See
Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23,
2003) (finding that the respondent’s use of the <saflock.com> domain name
to offer goods competing with the complainant’s illustrates the respondent’s
bad faith registration and use of the domain name, evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv)); see also Nokia Corp. v. Private,
D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant
to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered
similar products as those sold under the complainant’s famous mark).
The Panel finds 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 <cashstoreonline.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: August 14, 2008
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