Complainant is CNU Online Holdings, LLC of Chicago, Illinois, United States of America, represented by Foley & Lardner LLP, United States.
Respondent is Mardva Logsdon, cashnetusafinance, of Niceville, Florida, United States. 2. The Domain Name and Registrar
The disputed domain name, ("Domain Name"), is registered with Wild West Domains, LLC ("Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("Center") on April 11, 2017. On April 12, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 12, 2017, the Registrar transmitted by email to the Center its verification response confirming information related to the registration, but disclosing registrant and contact information for the Domain Name that differed from that in the Complaint. The Center sent an email communication to Complainant on April 19, 2017 providing the new registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 25, 2017.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 18, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 19, 2017.
The Center appointed Debra J. Stanek as the sole panelist in this matter on June 2, 2017. 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 and uses the mark CASHNETUSA for lending services. Complainant owns a number of trademark registrations for the mark and a number of stylized variants, including a United States trademark registration (No. 3,210,976) registered on February 20, 2007, claiming a date of first use in 2004, and United States trademark registrations that include stylized versions of CASHNETUSA in blue and orange that include the symbol "$" in a circle in place of the letter "s", one of which also includes the slogan "Money's on the way."
Respondent registered the Domain Name on April 12, 2016; visitors to the website to which the Domain Name resolves are presented with a website offering payday loans. The home page prominently displays CA$HNETUSA in blue and orange in a font similar to that used by Complainant, along with the slogan "Money's on the way."
In May 2016, Complainant demanded that Respondent stop using the CASHNETUSA marks in its Domain Name and on the website. Respondent did not reply to Complainant's letter and subsequent email messages. 5. Parties' Contentions A. Complainant 1. Identical or Confusingly Similar
Complainant has used the name and marks CASHNETUSA and CASHNETUSA.COM for its lending and other financial services since at least 2004 and owns United States federal registrations for the marks CASHNETUSA, CA$HNETUSA.COM (in a stylized form), and CA$HNETUSA MONEY'S ON THE WAY. Complainant offers its services via its website at the domain name , which it registered in 2004.
As a result of its substantial advertising and promotion, Complainant has developed considerable good will and reputation for its CASHNETUSA marks as well as for the associated goods and services.
The Domain Name is confusingly similar to Complainant's CASHNETUSA marks. It incorporates the entirety of the CASHNETUSA mark, adding the non-distinctive and descriptive term "finance."
The likelihood of confusion is increased because Respondent offers the same financial services, including payday loans and cash advances, to the same consumer audience as Complainant. 2. Rights or Legitimate Interests
According to the "WhoIs" database, Respondent registered the Domain Name on April 12, 2016, well after adoption and first use of the CASHNETUSA mark.
Respondent is not a licensee of Complainant and has not been authorized to use any of the CASHNETUSA marks or similar mark. Respondent registered the Domain Name without the authorization, knowledge or consent of Complainant.
Respondent 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.
The Domain Name is used for a website that features counterfeit versions of Complainant's marks, including its "CashNetUSA" logo and "Money's on the way" slogan, as well as copies of copyrighted photographs, graphics, and text copied from Complainant's website.
Respondent's website purports to offer payday loans and cash advances and collects consumer contact and financial account and other sensitive information. The site appears to originate from Complainant and asks "Existing Customers" to enter login and other banking and account information, presumably so Respondent may obtain account details from Complainant's customers.
Respondent has never been commonly known by the Domain Name and has no trademark or service-mark rights in the Domain Name. 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 disputed Domain Name.
On information and belief, Respondent's name and mailing address as provided to the Registrar are false. The telephone numbers for Respondent use Pittsburgh, Pennsylvania area codes, while the address is in Niceville, Florida.
Public records indicate that there is no individual named "Mardva Logsdon" or business known as "cashnetusafinance" at the given address in Florida. Instead, the address is associated with an interior design business and a woman named "Marda Logsdon"; public records indicate that the real Ms. Logsdon has never lived or done business in Pittsburgh, and is not associated with the telephone number or email address provided in the WhoIs listing. As such, on information and belief, Respondent coined the registrant name and appropriated the mailing address of a real individual to disguise the identity of a Pittsburgh-based Respondent.
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, cannot and does not constitute a bona fide offering of goods or services.
Additionally, Respondent cannot establish rights that Respondent was commonly known by the Domain Name or acquired trademark or service mark rights in the Domain Name prior to the registration of the Domain Name.
Respondent is not making a legitimate noncommercial or fair use of the Domain Name. Respondent is using the Domain Name to misdirects those seeking Complainant's commercial website to Respondent's own website. 3. Registered and Used in Bad Faith
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 to attract users looking for Complainant's website.
There is no conceivable way in which Respondent could use the Domain Name in good faith in light of Complainant's well-established rights in its CASHNETUSA and other marks. In addition, the following evidence supports a finding of bad faith:
- Respondent did not respond to Complainant's demand letters and emails
- Respondent's website makes unauthorized use of Complainant's copyrighted photographs, graphics, and text
- Complainant's mailing address, rather than Respondent's, is used on Respondent's site
- Respondent concealed its identity and contact information
- Respondent provided a false name and mailing address to the Registrar. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings 6.1. Procedural Matters
When the proceeding was initiated (see Rules, paragraph 3, providing that proceeding is initiated by "submitting a complaint"), the holder of the Domain Name registration was a "privacy" service. Thereafter, the Registrar disclosed the underlying "registrant name" as Mardva Logsdon and "registrant organization" as "cashnetusafinance" and updated its public WhoIs records. Consistent with the practice described in paragraph 4.4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0"), the Panel determines that newly-identified person and organization to be Respondent in this proceeding. 6.2. Substantive Matters
To prevail, a complainant must prove, as to a disputed domain name, that:
(i) it is identical or confusingly similar to a mark in which complainant has rights.
(ii) the respondent has no rights or legitimate interests in respect to it.
(iii) it has been registered and is being used in bad faith.
Policy, paragraph 4(a).
The Policy provides examples of circumstances that may evidence rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as those that may evidence bad faith registration and use, see Policy, paragraph 4(b).
Although Respondent has not answered the Complaint, a default does not automatically result in a finding for Complainant. See WIPO Jurisprudential Overview 3.0, paragraph 4.3. Rather, Complainant continues to have the burden of establishing the required elements. The Panel may, however, draw such inferences from Respondent's default as it considers appropriate. See Rules, paragraph 14(b). A. Identical or Confusingly Similar
Complainant has established its rights in the marks CASHNETUSA and CASHNETUSA.COM by virtue of the evidence of its U.S. federal trademark registrations.
Respondent's domain name is not identical to Complainant's marks. As a general matter, the Panel subscribes to the consensus view that the test for confusing similarity is satisfied where the relevant mark is recognizable as such within the domain name, regardless of the addition of descriptive, geographical, pejorative, meaningless, or other terms. See WIPO Jurisprudential Overview 3.0, paragraph 1.8.
Here, the addition of the descriptive term "finance" after "cashnetusa" does not effectively differentiate or distinguish the Domain Name from Complainant's mark, which remains the dominant portion of the Domain Name (the presence or absence of spaces and the addition of the generic Top-Level Domain ".com" is not relevant for purposes of this comparison).
The Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights. B. Rights or Legitimate Interests
The Panel shares the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing. See WIPO Jurisprudential Overview 3.0, paragraph 2.1 (once complainant makes a prima facie case, burden of showing rights or legitimate interests in the domain name shifts to respondent). Paragraph 4(c) of the Policy sets out examples of how rights and legitimate interests may be established:
(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.
The Panel concludes that Complainant has made a prima facie showing that Respondent lacks any rights or legitimate interests in the Domain Name, which Respondent has not rebutted.
Complainant, which established ownership of multiple "cashnetusa" marks, has not authorized Respondent's use of those marks, its stylized logo, slogan, or any images or text from Complainant's website. On this record, it does not appear that Respondent has used the Domain Name in connection with a bona fide offering. As noted above, the Domain Name is confusingly similar to Complainant's mark. Visitors to the site are presented with what appears to be the CASHNETUSA stylized logo and slogan. Although the registration identifies "cashnetusafinance" as the "registrant organization," it does not appear that Respondent is commonly known by the Domain Name. Use of the Domain Name appears to be for commercial purposes and for commercial gain.
The Panel concludes that Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
Complainant must establish that the Domain Name was registered and is being used in bad faith.
Complainant's rights in its CASHNETUSA marks predate Respondent's registration of the Domain Name. Given that Respondent's website offers services similar to those offered by Complainant and uses Complainant's marks, logos, slogans, and graphics, the Panel concludes that Respondent had actual knowledge of Complainant's trademark rights and intended visitors to believe that the website was that of Complainant for commercial gain, in accordance with paragraph 4(b)(iv) of the Policy.
In light of these facts and the adverse inferences that arise from Respondent's failure to respond to the Complaint, the Panel finds that Complainant has established that Respondent has registered and is using the Domain Name in bad faith. 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 disputed domain name be transferred to Complainant.
Debra J. Stanek
Sole Panelist
Date: June 16, 2017
Full & Egal Universal Law Academy