Check Into Cash, Inc. v. JM Leads / James Makan
Claim Number: FA1203001434601
Complainant is Check Into Cash, Inc. (“Complainant”), represented by Jessica Lewis of Alston & Bird, LLP, Georgia, USA. Respondent is JM Leads / James Makan (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <checkintocashonline.net>, registered with Enom, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 14, 2012; the National Arbitration Forum received payment on March 14, 2012.
On March 16, 2012, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <checkintocashonline.net> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 March 16, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 5, 2012 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@checkintocashonline.net. Also on March 16, 2012, 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 April 18, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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.
A. Complainant
Complainant contends as follows:
Complainant Check Into Cash is a national leader in consumer financial services providing payday advances, payday loans, title loans, check cashing and related services to its customers. Founded in 1993, Check Into Cash currently operates more than 1,100 branch locations in 30 states. Check Into Cash also offers its financial services and information about its financial services online through its website, located at the domain name <checkintocash.com>
Complainant registered the CHECK INTO CASH mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,525,178 registered October 28, 2008). Respondent’s disputed domain name is confusingly similar to Complainants CHECK INTO CASH mark.
Respondent is not commonly known by the disputed domain name. Respondent’s disputed domain name resolves to a website offering links to Complainant’s competitors in the financial services industry. Respondent lacks rights and legitimate interests in the disputed domain name. Respondent has registered and is using the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark right in the mark CHECK INTO CASH and had such rights prior to the at-issues domain names registration.
Respondent uses Complainant’s trademark in its domain name without authorization from Complainant.
Respondent uses a website referenced by the disputed domain name to trade off Complainant’s trademark.
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 has rights in a trademark which is substantially similar to Respondent’s at-issue domain name.
Complainant establishes that it has rights in the CHECK INTO CASH mark by showing registration of the mark with the USPTO (e.g., Reg. No. 3,525,178 registered October 28, 2008). See Disney Enters., Inc. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that the complainant’s registration of the DISNEY trademark with the USPTO prior to the respondent’s registration of the disputed domain name is sufficient to prove that the complainant has rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office).
The disputed domain name includes Complainant’s entire trademark, merely removing the spaces between the terms of the mark while merely adding the descriptive term “online” and the generic top-level domain (“gTLD”) “.net.” Since the difference between Respondent’s disputed domain name and Complainant’s mark do not distinguish the domain name from the mark, the <checkintocashonline.net> domain name is confusingly similar to Complainant’s CHECK INTO CASH mark for the purposes of Policy ¶ 4(a)(i) . See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)); 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).
Respondent lacks rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii) Complainant must first make out a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights and legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
There is no basis from which the Panel may find that respondent is commonly known by the at-issue domain name. The registration information for the domain name identifies the registrant as “JM Leads c/o James Makan” which is not at all similar to the domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). Since Respondent has defaulted in this case there is nothing in the record which tends to show that Respondent was commonly known by the domain name. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name). Additionally, Respondent has no connection or affiliation with Check Into Cash, nor has it at any time received from Check Into Cash a license or consent, express or implied, to use the CHECK INTO CASH mark in a domain name or in any other manner. The fact that domain name is used for what appears to be a click through website and may indeed be a business, cannot not demonstrates Respondent’s rights in the disputed domain pursuant to Policy ¶4(C)(I) since here Respondent’s business inappropriately trades on Complainant’s trademark and thus cannot be considered to be “bona fide.” See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii))
Based on the forgoing, the Panel concludes that Respondent lacks rights or interests in respect of the domain name.
The domain name was registered and is being used in bad faith.
Respondent registered and is using the disputed domain name in an attempt to commercially gain from the confusion created by including Complainant’s mark in the domain name and offering links to analogous services. It appears that the disputed domain name resolves to a pay-per-click website that exposes Internet users to links offered by Respondent that reference websites that compete with Complainant. Respondent either generates revenue, or intends to generate revenue, through this scheme by collecting a click-through fee for each Internet user it is able to divert to the linked sites. See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names). Respondent uses the at-issue domain name to provide links to various financial service related websites, including links to Complainant’s competitors. Such use additionally shows Respondent’s bad faith use of the disputed domain name to attract users to a website for the profit of Respondent. See Longs Drug Stores Cal. v. Shep Dog, WIPO Case No. D2004-1069 (WIPO Feb. 28, 2005) (holding that respondent is “not free to tread upon the goodwill built up by the complainant in order to steer traffic to a competing site”).
Given the foregoing, the evidence and argument presented by Complainant is sufficient for the Penal to find that Complainant has met its burden under Policy ¶4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <checkintocashonline.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 21, 2012
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