DECISION

Dollar Financial Goup, Inc. v System Development

Claim Number: FA0105000097293

PARTIES

Complainant is Dollar Financial Goup, Inc., Berwyn, PA, USA (“Complainant”) represented by Hilary B. Miller.  Respondent is System Development, Boca Raton, FL, USA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <eloanmart.com> registered with Network Solutions, Inc..

PANEL

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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 19, 2001; the Forum received a hard copy of the Complaint on May 21, 2001.

On May 22, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <eloanmart.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 May 22, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 11, 2001 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@eloanmart.com by e-mail.

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 June 18, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.”  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.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

1. Respondent’s second-level domain name <eloanmart.com> is confusingly similar to Complainant’s registered service mark LOAN MART and confusingly similar to Complainant’s own registered domain names that incorporate the LOAN MART mark.

2. Complainant is one of the largest national originators of small consumer loans, using the LOAN MART name and mark.  Complainant also widely uses the mark LOAN MART in the form of the following logotype:

3. Since 1997, Complainant has spent millions of dollars advertising its consumer financial services and has, to date, originated over $400,000,000 in consumer loans, a substantial portion of which have been originated at Complainant’s stores bearing the LOAN MART name and logo.

4. At the time of registration of Respondent’s domain names, Respondent knew or reasonably should have known of Complainant’s registered service mark LOAN MART and could easily have ascertained the status of such mark from a conventional trademark search, but failed to do so.

5. Respondent is not generally known by the mark ELOANMART and, prior to registration of the domain name at issue herein, had made no commercial use of the mark ELOANMART and had sold no goods or services under the mark (or any colorably similar mark) in any jurisdiction and therefore has no rights or legitimate interest in the domain name in dispute.

6. Complainant has conducted an extensive business name, common-law and state and federal trademark search and has discovered no evidence of the use in commerce of the mark ELOANMART by Respondent in any trade or business.  Accordingly, Respondent has no legitimate interests in respect of the domain name.

7. Respondent’s website contains no content, despite the domain name’s having been registered almost 18 months ago.  Passive holding of a domain name is strong evidence of bad faith.

B. Respondent

No Response was received from Respondent.

FINDINGS

1. Complainant is the senior user of the mark LOAN MART and has been continuously using the said mark and the logo, in various forms, in interstate commerce to describe its short-term consumer loan services since 1997.  Such mark was granted registration on the principal register of trademark of the U.S. Patent and Trademark Office on September 29, 1998.

2. Respondent registered its domain name in dispute herein on or about December 30, 1999, long following the commencement of Complainant’s use of the mark LOAN MART and the registration of Complainant’s mark.

DISCUSSION

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 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.

Identical and/or Confusingly Similar

The letter “e” in the beginning of Respondent’s domain name <eloanmart.com> is insufficient to distinguish it from Complainant’s registered mark LOAN MART.  See Crédit Lyonnais v. Ass’n Etre Ensemble, D2000-1426 (WIPO Dec. 7, 2000) (<e-creditlyonnais.com> confusingly similar to Complainant’s CREDIT LYONNAIS mark); Nike, Inc. v. Zia, D2000-0167 (WIPO Apr. 27, 2000) (<e-nike.com> confusingly similar to NIKE); Calvin Klein, Inc. v. Scelomo, FA 96314 (Nat. Arb. Forum Feb. 16, 2001) (<e-calvinklein.com> confusingly similar to CALVIN KLEIN); Louis Vuitton Malletier v. Sooksripanich, D2000-0866 (WIPO Nov. 3, 2000) (<elouisvuitton.com> confusingly similar to LOUIS VUITTON).

The Panel finds that Policy ¶ 4 (a)(i) has been satisfied.

Rights or Legitimate Interests

Complainant has contended that Respondent has no rights or legitimate interests in the domain name under Policy ¶ 4(c).  See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by the Complainant that the Respondent has no right or legitimate interest is sufficient to shift the burden of proof to the Respondent to demonstrate that such a right or legitimate interest does exist).

The Panel finds that Respondent is not using the domain name in connection with a legitimate noncommercial or fair use without intent for commercial gain.  The domain name is being passively held and does not resolve to a website. The Panel also finds that Complainant has shown that Respondent is not commonly known by the name ELOANMART.  See Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that Respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and Respondent is not commonly known by the domain name).

Therefore, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent knew or reasonably should have known of Complainant’s registered service mark LOAN MART, and by registering a domain name confusingly similar to Complainant’s mark Respondent has shown bad faith registration.  See Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the world-wide prominence of the mark, and thus Respondent registered the domain name in bad faith).

Respondent shows further bad faith by passively holding a domain name confusingly similar to Complainant’s mark.  See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where Respondent made no use of the domain name in question and there are no other indications that Respondent could have registered and used the domain name in question for any non-infringing purpose).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

Accordingly, it is Ordered that the <eloanmart.com> domain name be transferred from Respondent to Complainant.

John J. Upchurch, Panelist

Dated: June 22, 2001

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