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Dollar Financial Group v. RXW Management [2000] GENDND 827 (4 August 2000)

National Arbitration Forum

DECISION

Dollar Financial Group, Inc. v. RXW Management

Claim Number: FA0007000095108

PARTIES

The Complainant is Dollar Financial Group, Inc, Berwyn, PA, USA ("Complainant"). The Respondent is RXW Management, Philadelphia, PA, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME(s)

The domain name at issue is "ONLINELOANMART.COM", registered with Register.com

PANELIST

Hon. James A. Carmody, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on July 6, 2000; The Forum received a hard copy of the Complaint on July 6, 2000.

On July 7, 2000, Register.com confirmed by e-mail to The Forum that the domain name "ONLINELOANMART.COM" is registered with Register.com and that the Respondent is the current registrant of the name.

On July 10, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 31, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts by email.

On July 31, 2000 having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, The Forum transmitted to the parties a Notification of Respondent Default.

On August 2, 2000, pursuant to Complainantís request to have the dispute decided by a Single Member panel, The Forum appointed the Hon. James A. Carmody as Panelist.

Having reviewed the communications records in the case file, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform 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 Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIESí CONTENTIONS

1. Complainant

The Complainant contends that the Respondent has registered a domain name that is confusingly similar to the Complainantís registered mark. The Complainant also contends that the Respondent has no rights or legitimate interests in the domain name in question.

The Complainant asserts that the Respondent registered the domain name in question primarily for the purpose of selling, renting, or otherwise transferring it for valuable consideration in excess of its out-of-pocket costs.

The Complainant contends that the Respondent knew or should have known of the Complainantís registered mark and could easily have ascertained the status of the mark through a conventional trademark search.

The Complainant contends that the Respondentís registration of the domain name precludes the Complainant from registering the domain name.

2. Respondent

The Respondent has failed to submit a response in this matter and as a result, all inferences of reasonable fact in the Complaint will be deemed true.

FINDINGS

The Complainant owns the U.S. trademark registration for the mark LOANMART (No. 2,192,247). The Complainant provides short-term consumer loans under the LOANMART name and logo.

The Respondent registered the domain name in question on February 3, 2000. The Respondent has made no use of the website. The Respondent offers the domain name for sale on the website, <greatdomains.com>, an auction site for inactive domain names.

On April 12, 2000, the Complainant communicated with the Respondent regarding the use of the infringing domain name. The Respondent failed to respond to the Complainantís cease and desist communication.

DISCUSSION

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") directs that the complainant must prove each of the following three elements to support a claim that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

The Complainant has rights in the registered mark LOANMART.

The Respondentís domain name is confusingly similar to the Complainantís mark. The addition of the descriptive term "online" does not alter the underlying mark held by the Complainant. See Marriott Intíl v. Café au lait, FA 93670, (Nat. Arb. Forum March 13, 2000) (finding that the Respondentís domain name <marriott-hotel.com> is confusingly similar to Complainantís mark "Marriott").

The Complainant asserts that the Respondent has no rights or legitimate interests in the domain names in question. The Respondent has not denied that assertion.

The Respondent is not commonly known by the Complainantís mark. Policy  4(c)(ii).

The Respondent has not claimed to use the domain name in connection with any bona fide offering of goods or services nor for any legitimate or fair noncommercial use. Policy  4(c)(i), (iii). The Respondent is attempting to benefit from registration of the domain name by offering it for sale at a domain name auction site.

The Respondent has no rights or legitimate interests in the domain name.

The Complainant asserts that the Respondent acted and is acting in bad faith. The Respondent has not denied that assertion.

The Respondent has not developed the website located at the domain name in question. Passive holding of a domain name is evidence of bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

The Respondent registered the domain name in question for the purpose of selling, renting, or otherwise transferring it to the Complainant or the Complainantís competitors for valuable consideration in excess of its out-of-pocket costs. Policy  4(b)(i). Offering the domain for sale at a domain name auction website is evidence of registration and use in bad faith. See The Step2 Co. v. Softastic.com Corp., D2000-0393 (WIPO June 26, 2000) (finding that the Respondentís attempt to sell the domain name in question on <greatdomains.com>, a domain name auction site, for $100,000 constitutes bad faith).

Based on the above, the panel concludes that the domain name in question was registered and used in bad faith.

DECISION

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "ONLINELOANMART.COM" be transferred from the Respondent to the Complainant.

James A. Carmody, Judge (Ret.), Panelist
Dated: August 4, 2000