DECISION

Dollar Financial Group, Inc. v. Keith Aymar

Claim Number: FA0305000157291

PARTIES

Complainant is Dollar Financial Group, Inc., Berwyn, PA (“Complainant”) represented by Hilary B. Miller. Respondent is Keith Aymar, Clifton, NJ (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <cashtilpaydayloan.info> registered with R136-Lrms.

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.

Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on May 12, 2003; the Forum received a hard copy of the Complaint on May 13, 2003.

On May 12, 2003, R136-Lrms confirmed by e-mail to the Forum that the domain name <cashtilpaydayloan.info> is registered with R136-Lrms and that Respondent is the current registrant of the name. R136-Lrms has verified that Respondent is bound by the R136-Lrms 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 14, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 3, 2003 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@cashtilpaydayloan.info 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 5, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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 makes the following assertions:

1. Respondent’s <cashtilpaydayloan.info> domain name is confusingly similar to Complainant’s CASH ’TIL PAYDAY mark.

2. Respondent does not have any rights or legitimate interests in the <cashtilpaydayloan.info> domain name.

3. Respondent registered and used the <cashtilpaydayloan.info> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant owns two trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CASH ’TIL PAYDAY mark (Reg. No. 1,987,764 registered on July 16, 1996 and Reg. No. 2,606,704 registered on August 13, 2002) related to short-term, small, consumer loans. First use in commerce is recorded as August 17, 1995. Complainant operates a website, <cashtilpayday.com>, where consumer borrowers can arrange for “payday loans” using the Internet.

Respondent registered the <cashtilpaydayloan.info> domain name on June 7, 2002. Respondent is using the disputed domain name to market short-term, consumer loans, a service identical to the service offered by Complainant.

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 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.

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.

Identical and/or Confusingly Similar

Complainant has established that it has rights in the CASH ’TIL PAYDAY mark through registration with the USPTO and continuous use in commerce since 1995.

Respondent’s <cashtilpaydayloan.info> domain name is confusingly similar to Complainant’s CASH ’TIL PAYDAY mark because the disputed domain name appropriates Complainant’s entire mark and adds the generic term “loan” to the end of the mark. The addition of the generic term “loan” does not significantly differentiate the domain name from the mark under Policy ¶ 4(a)(i) because Complainant’s mark remains the dominant element of the domain name. This is especially the case when the generic term, in this case “loan,” has a direct relationship with the mark holder’s business. See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to Complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which Complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Marriott Int’l v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that Respondent’s domain name <marriott-hotel.com> is confusingly similar to Complainant’s MARRIOTT mark).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not favored the Panel with a Response in this proceeding. Therefore, the Panel may accept all reasonable allegations and inferences in the Complaint as true. See Bayerische Motoren Werke AG v. Bavarian AG, FA110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a Response the Panel is free to make inferences from the very failure to respond and assign greater weight to certain circumstances than it might otherwise do); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Furthermore, due to Respondent’s failure to answer the Complaint, the Panel may presume Respondent lacks any rights to or legitimate interests in the disputed domain  name pursuant to Policy ¶ 4(a)(ii). See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

Respondent’s use of the <cashtilpaydayloan.info> domain name to sell short-term, consumer loans in direct competition with Complainant is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods); see also Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website).

Moreover, Respondent has offered no evidence and there is no indication in the record that Respondent is commonly known by CASH TIL PAYDAY LOAN or <cashtilpaydayloan.info>. Thus, Respondent has failed to show that it has rights to or legitimate interests in the disputed domain name with regard to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

Accordingly, the Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent is using the <cashtilpaydayloan.info> domain name to market short-term, consumer loans in direct competition with Complainant. Respondent’s use of a domain name confusingly similar to Complainant’s mark to compete directly with Complainant suggests that Respondent registered the disputed domain name primarily for the purpose of disrupting the business of a competitor, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Hewlett Packard Co. v. Full Sys., FA 94637 (Nat. Arb. Forum May 22, 2000) (finding that Respondent registered and used the domain name primarily for the purpose of disrupting the business of the Complainant by offering personal e-mail accounts under the domain name <openmail.com> which is identical to Complainant’s services under the OPENMAIL mark); see also EBAY, Inc. v. MEOdesigns & Matt Oettinger, D2000-1368 (Dec. 15, 2000) (finding that the Respondent registered and used the domain name <eebay.com> in bad faith where Respondent has used the domain name to promote competing auction sites).

Moreover, Respondent’s operation of a commercial website at a domain name confusingly similar to Complainant’s mark demonstrates that Respondent has intentionally attempted to attract Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website, which evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks).

The Panel finds that Complainant has established Policy ¶ 4(a)(iii).

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <cashtilpaydayloan.info> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  June 9, 2003

---

WorldLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.worldlii.org/int/other/GENDND/2003/584.html