DECISION

Dollar Financial Group, Inc. v. EZLoanMart

Claim Number: FA0105000097309

PARTIES

Complainant is Dollar Financial Group, Inc., Berwyn, PA, USA (“Complainant”) represented by Hilary B. Miller.  Respondent is EZLoanMart, Van Nuys, CA, USA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is "ezloanmart.com" registered with Dotster, 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.

Judge Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 24, 2001; the Forum received a hard copy of the Complaint on May 25, 2001.

On May 24, 2001, Dotster, Inc. confirmed by e-mail to the Forum that the domain name "ezloanmart.com" is registered with Dotster, Inc. and that Respondent is the current registrant of the name.  Dotster, Inc. has verified that Respondent is bound by the Dotster, Inc. 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 25, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 14, 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@ezloanmart.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 21, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge 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 the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Respondent’s second-level domain name "ezloanmart.com" is confusingly similar to Complainant’s registered service mark LOAN MART^® (hereinafter “LOAN MART”) and confusingly similar to Complainant’s own registered domain names that incorporate the LOAN MART mark.

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

Respondent’s web site contains no content, despite the fact that the domain name was registered ten months ago.

B. Respondent

Respondent has not responded.

FINDINGS

Complainant Dollar Financial Group, Inc., a New York corporation, is one of the largest national originators of small consumer loans, using the LOAN MART name and mark.  Complainant also owns several domain names containing the LOAN MART mark. Complainant originates loans online at these various websites, including an option to apply for a loan electronically.  In addition, Complainant originates loans in nine states through its toll-free telephone number 1-800-LOANMART.

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

Respondent registered its domain name in dispute on or about July 26, 2000, long after the commencement of Complainant’s use of the mark LOAN MART and the registration of Claimant’s mark LOAN MART.

Respondent is not generally known by the mark EZLOANMART and, prior to registration of the domain name at issue herein, had made no commercial use of the mark EZLOANMART and had sold no goods or services under the mark (or any similar mark) in any jurisdiction.

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 EZLOANMART by Respondent in any trade or business.

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

There are two requirements that a Complainant must establish under paragraph 4(a)(i) -- that Complainant has rights in a trade or service mark, and that the domain name is identical or confusingly similar to the marks.

Complainant has provided evidence of US registration for its LOAN MART mark.  Complainant – as registered proprietor of the mark LOAN MART – has established the first requirement of this paragraph.

The second requirement is that the domain name be identical or confusingly similar to the marks.  The addition of the letters “ez” or variants thereof to Complainant’s established LOAN MART mark is insufficient to distinguish it from Complainant’s registered mark because LOAN MART remains the dominant feature of the Respondent’s domain name.  Given the mark’s dominant presence in the domain name, the Panel concludes that the domain name is confusingly similar to the LOAN MART mark.  As such, Complainant has established the second requirement of this paragraph.  See America Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that Respondent’s domain name <go2AOL.com> was confusingly similar to Complainant’s mark AOL).

Thus, Complainant has satisfied the burden set forth in Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not undertaken any bona fide use in connection with the domain name, nor even set the domain name to resolve to any web site.  As such, Respondent cannot claim rights or legitimate interests in the domain name under Policy ¶ 4(c)(i) or (iii) since these sections require either bona fide use or noncommercial or fair use of the domain name.   See American Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where Respondent merely passively held the domain name).

Respondent is not generally known by the mark EZLOANMART and, prior to registration of the domain name at issue herein, had made no commercial use of the mark EZLOANMART and had sold no goods or services under the mark (or any similar mark) in any jurisdiction.  Therefore, Respondent cannot claim to be commonly known by the EZLOANMART mark or the "ezloanmart.com" domain name, as set forth in Policy ¶ 4(c)(ii). 

Therefore, the Panel determines that Respondent has no rights or legitimate interests in the domain name in dispute.  Complainant has satisfied the burden set forth in Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent has failed to use the domain name in connection with any web presence.  The lack of any use and the failure to respond to Complainant’s request for transfer of the name raises a legitimate question concerning the Respondent’s potential use of the subject domain name.  It is well established by UDRP precedent that passive holding of a confusingly similar domain name is evidence of bad faith under the UDRP.  See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy); Guardant, Inc. v. Kim, D2001-0043 (WIPO Mar. 4, 2001) (finding bad faith where Respondent made no use of the domain names <skyteamcargo.com> and <cargoskyteam.com> and failed to respond to Complainant's transfer requests).

Therefore, the Panel concludes that Complainant has satisfied the burden set forth in Policy 4(a)(iii).

DECISION

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the Panel that the requested relief be granted.

 

Accordingly, for all of the foregoing reasons, it is ordered that the domain name "ezloanmart.com" be transferred from the Respondent to the Complainant.

Hon. Ralph Yachnin, Panelist

Dated: June 25, 2001

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