Complainant is CNU Online Holdings, LLC of Chicago, Illinois, United States of America ("United States" or "U.S."), represented by Foley & Lardner, United States.
Respondent is Kenneth Bolam of San Diego, California, United States, represented by The Trademark Company, PLLC, United States. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with D, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 22, 2016. On February 23, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent's 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 25, 2016, with a Response due date of March 16, 2016. In accordance with the Rules, paragraph 5(b), the due date for Response was extended by request of Respondent to March 20, 2016. The Response was filed with the Center on March 18, 2016.
The Complainant submitted a Supplemental Filing on March 31, 2016.
The Center appointed Christopher S. Gibson as the sole panelist in this matter on March 30, 2016. 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 owns a number of United States federally registered CASHNETUSA and CASHNETUSA.COM trademarks. In particular, Complainant owns federal Registration No. 3,210,976 for the CASHNETUSA mark, registered on February 20, 2007, covering "financial lending services, namely, money lending" in International Class 36. Complainant also owns federal Registration No. 3,380,743 for the mark CA$HNETUSA.COM (stylized), registered on February 12, 2008, covering financial lending services, namely, money lending in International Class 36. In addition, Complainant owns CASHNETUSA (U.S. Reg. No. 4,521,941), registered on April 29, 2014; CA$HNETUSA (stylized) (U.S. Reg. No. 4,617,254), registered on October 7, 2014; CA$HNETUSA (stylized) (U.S. Reg. No. 4,617,253), registered on October 7, 2014; MONEY'S ON THE WAY WITH CASHNETUSA (U.S. Reg. No. 4,389,011), registered on August 20, 2013; CA$HNETUSA MONEY'S ON THE WAY & Design (U.S. Reg. No. 4,517,667), registered on April 22, 2014; CA$HNETUSA MONEY'S ON THE WAY & Design (U.S. Reg. No. 4,517,668), registered on April 22, 2014; CA$HNETUSA.COM MAKE ANYDAY PAYDAY (stylized) (U.S. Reg. No. 3,893,164), registered on December 21, 2010; and CA$HNETUSA MAKE ANYDAY PAYDAY (stylized) (U.S. Reg. No. 3,893,165), registered on December 21, 2010.
Complainant markets its services via its website at , which was registered on January 22, 2004.
The Domain Name was registered on May 19, 2010.
Both Parties are located in the United States. 5. Parties' Contentions A. Complainant (i) Identical or confusingly similar
Complainant maintains that it has well-established rights in its CASHNETUSA and CASHNETUSA.COM trademarks (collectively the "CASHNETUSA marks"), using them (following its predecessor in interest) to brand Complainant's financial services for more than 10 years, since as early as 2004. Complainant states it has invested a substantial amount of time and resources to promote and advertise the CASHNETUSA marks and the goods and services associated with them. Complainant advertises extensively online, promoting its marks and brand through social media pages, blogs offering financial advice to consumers, banner advertisements, search engine optimization marketing, and the use of sweepstakes and contest promotions to engender goodwill among its new and prospective customers. Complainant claims it has spent millions of dollars each year over at least the last five years to advertise and promote its businesses, goods and services under the CASHNETUSA marks. As a result, Complainant states it has developed valuable goodwill and reputation in its CASHNETUSA marks.
Complainant contends that the Domain Name is confusingly similar to Complainant's CASHNETUSA marks because it incorporates the entirety of these marks, with the only addition being the non-distinctive term "work" between the terms "cashnet" and "USA". Previous UDRP panels have ruled that domain names are likely to be confusingly similar to established marks if they incorporate the mark or a variation of the mark. Complainant urges that Respondent's Domain Name, , is likely to cause consumers to mistakenly believe that the website is an authorized site where they can enter into transactions for Complainant's CASHNETUSA goods and services, or transactions with third-parties affiliated with Complainant. Complainant states the likelihood of confusion is increased because Respondent's site is offering the same financial services, including personal loans, to the same consumer audience as Complainant's website at "www.". For these reasons, Complainant asserts the Domain Name is confusingly similar to Complainant's CASHNETUSA marks and to the website Complainant uses to offer those services, at "www.". (ii) Rights or legitimate interests
Respondent registered the Domain Name on May 19, 2010, well after Complainant's (or its predecessor in interest's) first use of Complainant's CASHNETUSA mark. Respondent is not a licensee of Complainant, nor is it authorized to use any of Complainant's CASHNETUSA marks. Respondent registered the Domain Name without the authorization, knowledge or consent of Complainant. Although Respondent claims to have participated in Complainant's affiliate marketing program in the past, Complainant does not allow participants to use confusingly similar domain names in their marketing campaigns. This fact gives rise to a presumption that Respondent cannot establish that it has rights or any legitimate interest in the Domain Name.
Complainant states that beginning on August 14, 2015, Complainant learned that the Domain Name was pointing to a website that uses confusingly similar variants of Complainant's registered marks, including "Cash Network USA," and offering financial services, including personal and business loans. On August 20, 2015, Complainant sent a demand letter to Respondent regarding the unauthorized use of a confusingly similar variant of the CASHNETUSA marks in the Domain Name. The letter was received by Respondent and Respondent agreed to park the website and rebrand it. Complainant states that Respondent, however, continues to use the Domain Name in connection with the offering of financial services, including personal and business loans, under the business names "Cash Network" and "Cash Network USA," and has refused to transfer the Domain Name to Complainant.
Respondent cannot establish rights in the Domain Name under the Policy because it has never made any use of, or demonstrable preparations to use, the Domain Name or any name corresponding to the Domain Name in connection with a bona fide offering of goods or services. Complainant argues that a respondent's use of a domain name to intentionally trade on the well-known marks of another, in order to lure Internet users to a website unrelated to the trademark owner, does not constitute a bona fide offering of goods or services. Respondent's use of the Domain Name, which is confusingly similar to Complainant's marks, in conjunction with a website that offers financial services, including personal and business loans, is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use pursuant to the Policy.
Complainant states that even if Respondent was, at some point, acting as an authorized affiliate for Complainant, Respondent went beyond its authority by registering and using a confusingly similar domain name. Complainant does not grant licenses to its marketing affiliates and does not authorize them as part of the affiliate marketing relationship to use or register domain names that are confusingly similar to its trademarks. Thus, use of the Domain Name as part of a marketing affiliate relationship with Complainant does not constitute bona fide use of the Domain Name.
Respondent cannot establish rights in the Domain Name because Respondent had never been commonly known by the Domain Name and had not acquired trademark rights in it prior to the registration of the Domain Name. Complainant states that to come within the safe harbor of paragraph 4(c)(ii) of the Policy, a respondent must have been commonly known by the domain name prior to the time of registration. Further, Complainant is not aware of any incorporated or registered business name for Respondent using the Domain Name, and nothing in Respondent's WhoIs information or in any other information known about Respondent implies that Respondent is commonly known by the Domain Name. This result suggests that Respondent has no rights or legitimate interests in the Domain Name.
Complainant emphasizes that Respondent's use of the Domain Name misdirects potential visitors seeking Complainant's commercial website to Respondent's own website. Respondent's use of the Domain Name to misdirect consumers is not a bona fide offering of goods or services, and therefore does not constitute a legitimate noncommercial or fair use of the Domain Name under the Policy. (iii) Registered and used in bad faith
Complainant asserts Respondent is using the Domain Name intentionally to attract Internet users, for commercial gain, by creating a likelihood of confusion. The only reason Respondent registered the Domain Name is in order to attract users looking for Complainant's website, for Respondent's own commercial gain.
Registration and use of an infringing domain name in order to misdirect consumers, display banner advertisements or links to third-party commercial websites, or subject users to unsolicited pop-up advertisements, is evidence of bad faith under paragraph 4(b)(iv) of the Policy.
As stated in the Policy, the circumstances which support a finding of bad faith are "without limitation," and thus other considerations beyond those explicitly stated in the Policy may be used to support a finding that the Domain Name was registered and used in bad faith. In light of Complainant's well-established rights in its marks, including the CASHNETUSA mark, and the coupling of a virtually identical mark with a generic Top Level Domain, there is no conceivable way in which Respondent could use the Domain Name in good faith. For these reasons, Respondent registered and uses the Domain Name in bad faith. B. Respondent (i) Identical or confusingly similar
Respondent states the Domain Name is notidentical or confusingly similar to a trademark in which Complainant has rights. In order to successfully make out its claims, Complainant has to demonstrate a similarity between the Domain Name and the claimed marks and Complainant must adequately demonstrate that it retains prior rights in the claimed marks.
While Complainant claims rights to the marks CASHNETUSA and CASHNETUSA.COM, Respondent is using the Domain Name to provide merchant services for a network of lenders and banks. The Domain Name incorporates the additional term, namely "work," in the middle of the same. Respondent argues the addition of this term provides enough difference in order for consumer confusion to be unlikely. Furthermore, Respondent has used the Domain Name for almost five years without any instances of confusion between Respondent and Complainant, despite Complainant's contentions that this term is not distinctive and does not distinguish the Domain Name from Complainant's claimed marks. However, Complainant has provided no proof of confusion beyond a cursory statement. In fact, the term does distinguish the Domain Name and the claimed mark. Respondent states the term "work" gives the Domain Name a completely different impression than Complainant's claimed mark. Based on the foregoing, Respondent contends that Complainant has failed to meet its burden under Policy, paragraph 4(a)(i). (ii) Rights or legitimate interests
Respondent contends that Complainant fails to demonstrate that Respondent lacks rights and legitimate interests in respect of the Domain Name. Moreover, Respondent maintains that it can establish rights and legitimate interests in the Domain Name. Respondent states that it registered the Domain Name on May 19, 2010 for the primary purpose of becoming a merchant services provider for a network of lenders and banks. For almost five years Respondent has continuously used the Domain Name to primarily market and resell the services of a network of lenders and banks.
Moreover, Respondent states it has been an authorized marketer of Complainant's services since at least as early as August 18, 2012. For almost three years, Respondent states it has been authorized to offer Complainant's services through the Domain Name and is still authorized to do so. Respondent further states it did not receive notice from Complainant contesting Respondent's use of the Domain Name for use in connection with the marketing and sale of Respondent's merchant services until August 20, 2015, two years after Respondent had been offering Complainant's services through the Domain Name per the affiliate relationship between Complainant and Respondent. Respondent maintains that a bona fide offering may be found where the Domain Name describes services for which Respondent is a reseller or distributor, where Respondent is a licensee of Complainant, where the Domain Name corresponds to a trademark that Respondent uses in parallel with Complainant's use of its mark, or where Complainant acquiesced in the use of the Domain Name.
Respondent claims that it was never its objective to create a false impression of an affiliation between Respondent and Complainant by registering and using the Domain Name to market and offer merchant services for a network of lenders and banks. Moreover, there is no indication on the website at the Domain Name that the website is endorsed by Complainant. As such there is no evidence to support that Respondent, by using the Domain Name, is intentionally attempting to attract for commercial gain, Internet users by creating likelihood for confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of the website. Moreover, Respondent does not have, nor has ever had the intent to misleadingly divert consumers or to tarnish Complainant's trademark at issue. Respondent states he is willing to add a disclaimer to his website to make this point clear to Internet users. In sum, it is respectfully submitted that Complainant fails to establish this element of the Policy. (iii) Registered and used in bad faith
Respondent states that if the Panel concludes that Respondent has rights and interests in respect of the Domain Name, the Panel may also find, without more, that Respondent did not register or use the Domain Name in bad faith pursuant to the Policy, paragraph 4(a)(iii). Nevertheless, should further consideration be warranted, the above evidence concerning Respondent's rights and legitimate interests in the Domain Name is also relevant to the question of whether Respondent registered and used the Domain Name in bad faith.
Respondent contends there is no evidence that Respondent registered the Domain Name in bad faith. Specifically, there is no evidence that Respondent has used the Domain Name for commercial gain by creating confusion with Complainant's trademark. Nor is there evidence of a pattern of bad faith registration of multiple domain names. Further, Respondent states it did not register the Domain Name in order to prevent Complainant from registering a domain name corresponding with Complainant's marks, and it also cannot be established that Respondent registered and is using the Domain Name to disrupt the business of Complainant, much less a competitor of Respondent, of which Complainant is not.
Moreover, Respondent urges there is no evidence to support that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website, by creating a likelihood of confusion with Complainant's marks as to the source, sponsorship, affiliation, or endorsement of Respondent's website. Additionally, Respondent has not registered or acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the Domain Name.
Respondent states that he intends to continue use of the Domain Name for its current purpose, and has no intention of transferring it to another party. As such, it is submitted that Respondent has established that he did not register the Domain Name in bad faith. There is simply no evidence that the Domain Name was registered in bad faith or that bad faith has existed in regards to Respondent's use of the Domain Name. In sum, Respondent respectfully submits that Complainant has failed to establish this element of the Policy. (iv) Laches
Respondent contends that Complainant's claim in this case should be barred by the doctrine of laches and thus, it is unnecessary to consider the three elements of the Policy. Respondent states that laches is an equitable defense that has been held to apply in trademark enforcement actions, when a claimant's inexcusable delays in asserting its claim unduly prejudices the party against whom the claim is asserted. To successfully defend on the basis of laches, Respondent states a defendant must demonstrate the presence of three elements: (1) a delay in asserting a right or a claim; (2) that the delay was not excusable; and (3) that there was undue prejudice to the party against whom the claim is asserted. Respondent states that a small number of UDRP panels have begun to acknowledge the possible applicability, in appropriate and limited circumstances, of a defense of laches under the Policy. Respondent asserts that UDRP panels have also noted that a delay in bringing a complaint under the UDRP may make it more difficult for a complainant to establish its case on the merits, particularly in relation to the second and third elements requiring the complainant to establish that the respondent lacks rights and legitimate interests and that the respondent registered and used the domain name in bad faith.
In this case Respondent registered the Domain Name on May 19, 2010. Respondent states that for a period of almost five years, Complainant delayed in bringing this proceeding to enforce its rights. This delay is not only lengthy but also inexcusable. Furthermore, Respondent claims Complainant was aware of Respondent's use of the Domain Name since at least as early as August 18, 2012, as shown by Respondent's advertiser records despite Complainant's claims to have learned about the Domain Name on or about August 14, 2015. For a period of two and a half years, Complainant delayed in bringing forward this proceeding to enforce its rights despite knowledge of Respondent's use of the Domain Name. If this matter is decided in Complainant's favor it would cause prejudice to Respondent as Respondent has spent almost five years utilizing the Domain Name in business and has invested in that business and has plans to continue to utilize the Domain Name in the future. In sum, due to Complainant's inexcusable delay in asserting its claims on the Domain Name and the undue prejudice to Respondent, this Complaint should be barred based upon the doctrine of laches. 6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that the three elements enumerated in paragraph 4(a) of the Policy have been satisfied. These elements are that:
(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 to or legitimate interests in respect of the Domain Name; and
(iii) Respondent has registered and is using the Domain Name in bad faith. A. Identical or Confusingly Similar
The Panel must first determine whether the Domain Name is identical or confusingly similar to a trademark in which Complainant has rights. Complainant has established its trademark rights, submitting evidence of ownership of a number of U.S. federal trademark registrations for its CASHNETUSA and CASHNETUSA.COM trademarks, which Complainant has used (along with its predecessor in interest) to brand its financial services offerings, including loans, since as early as 2006.
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.2 ("The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name….").
The Panel finds that the Domain Name, , is confusingly similar to Complainant's CASHNETUSA and CASHNETUSA.COM marks, with the only difference being the descriptive word "work", which is present in the Domain Name but not in Complainant's mark. The addition of the word "work" following the term "net" forms the new word, "network". However, the word "net" is itself used sometimes as an abbreviated reference to various (mainly online) networks. Adding the term "work" in this context does not sufficiently differentiate the Domain Name from Complainant's marks, especially in view of the other common terms shared between the Domain Name and Complainant's marks, namely, "cash", "net" and "USA". Because of this similarity between the Domain Name and Complainant's marks, confusing similarity is present. As the panel explained in Red Bull GmbH v. Paul Battista,WIPO Case No. D2010-0353 (quoting SANOFI-AVENTIS v. Jason Trevenio,WIPO Case No. D2007-0648), "[c]onfusion in this context, in the sense of bewilderment or failing to distinguish between things, may be regarded as a state of wondering whether there is an association, rather than a state of erroneously believing that there is one. An appropriate formulation might be: 'Is it likely that, because of the similarity between the domain name on the one hand and the Complainant's trademark on the other hand, people will wonder whether the domain name is associated in some way with the Complainant?'"
The Domain Name also includes the generic Top-Level Domain suffix: ".com". However, it is generally accepted that the addition of the top-level suffix in a domain name (e.g., ".com") is to be disregarded under the confusing similarity test. See WIPO Overview 2.0, paragraph 1.2.
Accordingly, the Panel finds that Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the Domain Name. A complainant is normally required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. The overall burden of proof, however, remains with the complainant.
The Panel finds that Complainant made out a prima facie case in the Complaint that Respondent lacks rights or legitimate interests in the Domain Name. Complainant showed that Respondent registered the Domain Name in May 2010, well after Complainant's (or its predecessor in interest's) first use of its CASHNETUSA marks dating from 2006. Complainant confirmed that Respondent registered the Domain Name without the authorization, knowledge or consent of Complainant, and is not a licensee of Complainant, even though the Domain Name has been used in connection with a website offering financial services similar to those offered by Complainant. Complainant stated that even if Respondent claims to have participated in Complainant's affiliate marketing program in the past, Complainant does not allow participants in this program to use domain names that are confusingly similar to Complainant's CASHNETUSA marks in their marketing campaigns. Moreover, there is no evidence that Respondent is commonly known by the Domain Name or that Respondent has any rights to any trade names or trademarks consisting in whole or in part of the Domain Name. Instead, Respondent's name is Kenneth Bolam. Complainant alleged that Respondent registered the Domain Name and used it in connection with a website offering financial services similar to those offered by Complainant, including personal and business loans, to intentionally trade off on Complainant's CASHNETUSA marks. Complainant submitted evidence in support of this allegation. Such use of the Domain Name does not constitute a bona fide offering of goods or services.
In response to this prima facie showing, Respondent states that it registered the Domain Name in May 2010 and has used it for almost five years in relation to financial services, to market and resell the services of a network of lenders and banks, and as an authorized marketer of Complainant's services. However, one question that Respondent has not adequately answered is why he chose the particular Domain Name in the first place. The choice of the Domain Name – which is so similar to Complainant's pre-existing CASHNETUSA marks – while using the Domain Name for financial services similar to those offered by Complainant, and even offering Complainant's services as well, is highly suggestive that Respondent targeted Complainant's marks when it registered the Domain Name. Respondent has stated that it uses the Domain Name to offer merchant services for a "network" of lenders and banks. However, this does not adequately explain why it specifically chose a word combination with the terms "cash" plus "network" plus the acronym "USA", which is so similar to Complainant's marks. Nor has Respondent indicated that it sought Complainant's permission to use a Domain Name that was so similar to Complainant's marks.
Respondent's allegations, in effect, seek to place the burden on Complainant to have objected to Respondent's use. This view is also reflected in Respondent's argument concerning laches. However, Complainant has stated that it first became aware of Respondent's use of the Domain Name in August 2015, and sent a letter to Respondent at that time. In response, Respondent has submitted a copy of a purported advertising record in attempt to show that Complainant should have been aware of Respondent's Domain Name at an earlier time, from August 2012. However, upon review, the relevance of this record and whether it was ever brought to Complainant's attention is unclear at best. (Moreover, as indicated by WIPO Overview 2.0, paragraph 4.10, most UDRP panels have recognized that the doctrine or defense of laches as such does not generally apply under the UDRP). In any event, this line of argument from Respondent misses a significant point: pursuant to the Policy, paragraph 2, Respondent was required, at the time of registration, to represent and warrant that the registration of the Domain Name "will not infringe upon or otherwise violate the rights of any third party." From the record in this case, the Panel determines, on the balance of the probabilities, that Respondent was aware of Complainant when it registered the Domain Name, yet did not seek any authorization or license to use a name that was so similar to Complainant's trademarks, even though Respondent has acknowledged that the Domain Name was intended to be used in relation to financial services, a field where Complainant's trademarks were already well established. Moreover, earlier versions of Respondent's website showed signs of imitation to Complainant's website, although Respondent's website now appears to be branded as "Cash Network", a name which no longer matches Respondent's Domain Name, .
Respondent also contends that a bona fide offering of goods or services may be found where the Domain Name describes services for which Respondent is a reseller or distributor, where Respondent is a licensee of Complainant, where the Domain Name corresponds to a trademark that Respondent uses in parallel with Complainant's use of its mark, or where Complainant acquiesced in the use of the Domain Name. Here, the Panel finds that Respondent has no trademark or trade name corresponding to the Domain Name, is not a licensee of Complainant's marks, and that Complainant has not acquiesced to Respondent's use of the Domain Name. Respondent also states he is willing to add a disclaimer to his website; however, this statement is also an acknowledgement that no disclaimer has been previously used by Respondent during the relevant period prior to this dispute.
With regard to Respondent's contention that a bona fide offering of goods or services should be found because the Domain Name describes services for which Respondent is a reseller or distributor, the Panel refers to the guidance provided in WIPO Overview 2.0, paragraph 2.3, stating principles articulated in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903. Paragraph 2.3 sets forth the consensus view that a reseller or distributor can be making a bona fide offering of goods and services and thus have a legitimate interest in a domain name if its use meets certain requirements, including (i) the actual offering of the complainant's goods and services, (ii) the use of the site to sell only the complainant's trademarked goods and services, (iii) the site's accurately and prominently disclosing the registrant's relationship with the trademark holder, and (iv) the respondent must also not try to "corner the market" in domain names that reflect the trademark. Furthermore, a small number of panels have taken the view that, without express authority of the relevant trademark holder, a right to resell or distribute that trademark holder's products does not create a right to use a domain name that is identical, confusingly similar, or otherwise wholly incorporates the relevant trademark.
Here, the Panel finds that Respondent has not satisfied the Oki Data factors, particularly as Respondent's website did not only offer Complainant's trademarked goods and services, but also those of other lenders and banks. Thus, Respondent is using the Domain Name (incorporating Complainant's mark) to attract consumers to his website where he offers the financial products of a number of lenders and banks, some of which are in direct competition with Complainant. This does not constitute a "fair" use of the Domain Name, nor does it give rise to any right or legitimate interest on the part of Respondent in the Domain Name. Further, Respondent's site failed to accurately and prominently disclose Respondent's relationship with Complainant.
Accordingly, the Panel determines that despite Respondent's detailed arguments, Respondent has no rights or legitimate interests in the Domain Name. Complainant has established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
As discussed above, the Panel finds, on the balance of the probabilities, that Respondent targeted Complainant's pre-existing and well-established CASHNETUSA marks when he registered the Domain Name with the intent to use it in relation to financial services. Respondent also thereby likely failed to fulfill his representation and warranty under paragraph 2 of the Policy that the registration of the Domain Name will not infringe upon or otherwise violate the rights of any third party. Moreover, for all of the reasons discussed in this decision, the Panel also determines that Respondent's use of the Domain Name, rather than generating any rights or legitimate interests in it, was use in bad faith, as Respondent intended to attract, for Respondent's own commercial gain, Internet users looking for Complainant's website and financial services. Policy, paragraph 4(b)(iv).
Accordingly, the Panel determines that the Domain Name has been registered and is being used in bad faith under the Policy and Complainant has established the third element of paragraph 4(a) of the Policy. 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.
Christopher S. Gibson
Sole Panelist
Date: May 1, 2016
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