Complainant is CNU Online Holdings, LLC of Chicago, Illinois, United States of America (“US”), represented by Foley & Lardner, US.
Respondent is Kasezga of Essex, Maryland, US. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 8, 2014. On October 8, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 9, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 13, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 2, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 3, 2014.
The Center appointed John R. Keys, Jr. as the sole panelist in this matter on November 11, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant is engaged in providing financial services, particularly the business of lending money, under the name and service marks CASHNETUSA and CASHNETUSA.COM. Complainant or its predecessor in interest have used these names and marks since at least 2004.
Complainant owns trademark registrations on the Principal Register of the US, including, inter alia, the following:
CASHNETUSA, Reg. No. 3,210,976, registration date February 20, 2007, for financial lending services, namely, money lending;
CASDHNETUSA.COM, Reg. No. 3,380,743, registration date February 12, 2008, for financial lending services, namely, money lending; and
CASHNETUSA, Reg. No. 4,521,941, registration date April 29, 2014, for downloadable software in the nature of a mobile application for use in conducting and managing consumer financing transactions and applying for and managing personal loans.
Complainant markets its services from its website at .
The Domain Name was registered on August 8, 2014.
The Domain Name resolved to a website that used Complainant’s registered marks, identified itself as originating with Complainant, listed Complainant’s address as its own, and made several other misrepresentations, including that it was affiliated with the Federal Trade Commission. The site solicited confidential personal information, including social security numbers and banking account information, from consumers under the guise of providing applications for personal loans under Complainant’s marks.
Complainant sent a demand letter to which Respondent did not respond. The Registrar, however, has temporarily suspended the Domain Name and website. 5. Parties’ Contentions A. Complainant
Complainant contends that it owns and has established rights in its CASHNETUSA service marks and that Respondent’s Domain Name is confusingly similar to Complainant’s marks. The Domain Name incorporates the whole of Complainant’s trademark, adding to it the generic term “lender”, which describes Complainant’s services. The Domain Name is thus likely to cause consumer confusion as to affiliation with Complainant and Complainant’s services.
Complainant contends that Respondent has no rights or legitimate interests in the Domain Name in that:
Complainant has never authorized Respondent to use Complainant’s CASHNETUSA service marks as a mark or as part of a domain name;
Respondent has never made use of, or any demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services;
Respondent has never been commonly known by the Domain Name and has not acquired trademark or service mark rights in the Domain Name; and
The Domain Name does not constitute a legitimate noncommercial or fair use under the Policy.
Finally, Complainant contends that Respondent registered and used the Domain Name in bad faith, principally because the Domain Name is used to attract Internet users to Respondent’s website, for Respondent’s commercial gain, by creating and exploiting a likelihood of confusion with Complainant's marks and services.
Complainant further contends that there is no conceivable way in which Respondent could use the Domain Name in good faith and that it has received communications from consumers who have actually been confused by emails from Respondent's website under the false pretense that Complainant has approved a loan application. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Respondent did not respond to the Complaint. The Panel therefore considers whether Respondent has been given adequate notice of the proceeding. The evidence indicates that the Center sent the Complaint in electronic form and the Written Notice in hard copy by courier to Respondent at the addresses provided in the Complaint, in Respondent’s registration information available in the publicly available WhoIs database, and from the Registrar. Certain of Respondent’s contact information on record proved to be inaccurate. The Panel concludes that the Center discharged its responsibility under the Rules to notify Respondent of the Complaint and administrative proceeding.
Where there is no response to the complaint, the Panel must decide the dispute based upon the complaint. Rules, paragraphs 5(e) and 14(a). The Panel is to decide the Complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any principles of law the Panel deems applicable. Rules, paragraph 15(a). Under the Rules, paragraph 14(b), Respondent’s failure to answer entitles the Panel to “draw such inferences therefrom as it considers appropriate”.
Under the Policy, paragraph 4(a), Complainant must prove each of three elements of its case in order to obtain the requested relief:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) Respondent registered and is using the Domain Name in bad faith. A. Identical or Confusingly Similar
Complainant has rights in its CASHNETUSA and CASHNETUSA.COM service marks by reason of its registrations of those marks on the Principal Register of the US and as a matter of common law by reason of established use in commerce in the US over a period of some ten years.
The Panel finds the Domain Name to be confusingly similar to Complainant’s service marks. The “cashnetusa” parts of Complainant’s service marks and the Domain Name are identical. The addition in the Domain Name of the descriptive word “lender”, which describes Complainant’s business, does not distinguish the Domain Name from Complainant’s marks and is clearly intended to create or even exacerbate user confusion, not to dispel or negate confusion or outright deception. See, Scania CV AB (Publ) v. Unaci, Inc.,WIPO Case No. D2005-0585).
Complainant has established the first element of its case. B. Rights or Legitimate Interests
Complainant bears the overall burden to prove that Respondent has no rights or legitimate interests in the Domain Name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”). However, where Complainant makes a prima facie case that Respondent does not possess such rights or legitimate interests, the burden of production shifts to Respondent to demonstrate that he does in fact possess such rights or legitimate interests. Id. Where, as here, Respondent fails to come forward with allegations or evidence to demonstrate that he possesses such rights or legitimate interests, Complainant’s prima facie case will usually be found sufficient to meet Complainant’s overall burden of proof. Id.
Paragraph 4(c) of the Policy provides that a respondent may demonstrate rights or legitimate interests in a domain name by showing one of the following circumstances:
(i) before any notice to Respondent of the dispute, Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services, or
(ii) Respondent has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant can make out a prima facie case by negating such circumstances, see Paris Hilton v. Deepak Kumar,WIPO Case No. D2010-1364, which Complainant has done in this case.
Respondent is not using the Domain Name in connection with a bona fide offering of goods or services. Policy, paragraph 4(c)(i). Respondent’s use of a trademark-infringing domain name to trade intentionally on the marks and goodwill of another in order to create confusion and misdirect Internet users to its own website for commercial gain is not a bona fide offering of goods or services. See Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “M”,WIPO Case No. D2000-0847.
There is nothing in the record suggesting that Respondent has ever been commonly known by the Domain Name. Complainant, moreover, has not granted Respondent authority or license to use Complainant’s name or trademarks in a Domain Name. Policy, paragraph 4(c)(ii).
Respondent’s creation and use of an intentionally confusing Domain Name based on Complainant’s trademarks for a plainly commercial and even deceptive purpose does not constitute either a noncommercial or a fair use of the Domain Name. Policy, paragraph 4(c)(iii).
Respondent has not come forward with facts or argument to rebut Complainant’s prima facie case. Complainant’s prima facie is well-supported on the record, and the Panel accepts it. Complainant has established the second element of its case. C. Registered and Used in Bad Faith
Complainant must show that the Domain Name was registered and is being used in bad faith. Paragraph 4(b)(iv) of the Policy provides that the following is evidence of registration and use in bad faith:
By using the domain name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
The Panel considers the evidence of record sufficient to establish that Respondent registered and is using the Domain Name with intent to exploit Complainant’s service marks and goodwill in those marks to create confusion and divert Internet traffic to a website that would then generate revenue for Respondent. Respondent registered and is using a Domain Name that incorporates Complainant’s trademark in its entirety, is plainly intended to confuse the Internet users, to divert traffic from Complainant to Respondent, resolves to a website offering the same type of financial lending service as does Complainant, and offers its loan services for sale. See, Beemak Plastics, Inc. v. WestRep Group,WIPO Case No. D2001-1023; E, Inc. v. Ult. Search, Inc.,WIPO Case No. D2001-1319; Dell, Inc. v. George Dell and Dell Net Solutions,WIPO Case No. D2004-0512. There is plain bad faith in Respondent’s efforts at duplicating the look and feel and certain elements of Complainant’s own website, including Complainant’s name and address, all of which which would further mislead or deceive consumers to their potential serious detriment. See HPR Commodities LLC v. Rob Harper,WIPO Case No. D2007-0153; Flinter Bank Zurich v. Shumin Ping,WIPO Case No. D2006-0432.
The Panel notes additional significant indicators of bad faith in that Respondent’s website contains apparent misrepresentations of its address, affiliation with the Federal Trade Commission, and a 35-year business history and that it solicits confidential information from consumers such as social security numbers and bank account information. The Panel further notes as evidence of bad faith Respondent’s failure to respond to Complainant’s demand letter, its apparent failure to provide or maintain accurate or complete contact information with the Registrar, and its failure to respond to the Complaint in this case. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
For all of the foregoing reasons, the Panel concludes that Respondent registered and is using the Domain Name in bad faith and that Complainant therefore has established the third and final element of its case. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to Complainant.
John R. Keys, Jr.
Sole Panelist
Date: November 25, 2014.
Full & Egal Universal Law Academy