DECISION

Moneytree, Inc. v. Money Tree Lending Co.

Claim Number: FA0308000190517

PARTIES

Complainant is Moneytree, Inc., Seattle, WA (“Complainant”) represented by Kathleen T. Petrich of Stokes Lawrence, P.S. Respondent is Money Tree Lending Co., Littleton, CO (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <moneytreelendingllc.com> registered with Network Solutions, 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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 25, 2003; the Forum received a hard copy of the Complaint on August 28, 2003.

On August 28, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <moneytreelendingllc.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 August 29, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 18, 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@moneytreelendingllc.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 September 27, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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 <moneytreelendingllc.com> domain name is confusingly similar to Complainant’s MONEY TREE mark.

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

3. Respondent registered and used the <moneytreelendingllc.com> domain name in bad faith.

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

FINDINGS

Complainant has provided proof of a service mark registration with the United States Patent and Trademark Office (“USPTO”) for the MONEY TREE mark (Reg. No. 2,166,890 registered on June 23, 1998) related to financial services. Complainant has offered its services in connection with the MONEY TREE mark and trade name since 1983.

Respondent registered the <moneytreelendingllc.com> domain name on May 30, 2001. Respondent is using the disputed domain name to offer financial services similar to those 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 demonstrated its rights in the MONEY TREE mark through registration with the USPTO and continuous use in commerce since 1983.

Complainant argues that Respondent’s <moneytreelendingllc.com> domain name is confusingly similar to Complainant’s MONEY TREE mark because the disputed domain name appropriates Complainant’s entire mark and simply adds the generic or descriptive terms “lending” and “llc” to the end of the mark. The addition of these generic or descriptive terms fails to diminish the confusing similarity between Respondent’s domain name and Complainant’s mark, especially because the term “lending” has a direct relationship with Complainant’s financial services. See L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that combining the generic word “shop” with Complainant’s registered mark “llbean” does not circumvent Complainant’s rights in the mark nor avoid the confusing similarity aspect of the ICANN Policy); see also Brambles Industries Ltd. v. Geelong Car Co. Pty. Ltd., trading as Geelong City Motors, D2000-1153 (WIPO Oct. 17, 2000) (finding that the domain name <bramblesequipment.com> is confusingly similar because the combination of the two words "brambles" and "equipment" in the domain name implies that there is an association with Complainant’s business).

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

Rights or Legitimate Interests

Respondent has neglected to respond to Complainant’s allegations in this proceeding. Thus, the Panel accepts all reasonable allegation and inferences in the Complaint as true. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); 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, Respondent has failed to invoke any circumstances that could demonstrate rights to or legitimate interests in the <moneytreelendingllc.com> domain name. When Complainant asserts a prima facie case against Respondent, the burden shifts to Respondent to show that it has 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 Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).

Respondent was using the <moneytreelendingllc.com> domain name, a domain name confusingly similar to Complainant’s federally registered service mark, to offer financial services in direct competition with Complainant’s services. The use of a domain name confusingly similar to Complainant’s mark to compete with Complainant in the financial services industry represents neither a bona fide offering of goods or services with regard to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use with regard to 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).

Complainant maintains that Respondent is neither affiliated with Complainant nor has Respondent been granted the right or permission to use the MONEY TREE mark. Moreover, Respondent has provided no affirmative evidence that it was commonly known by MONEY TREE LENDING LLC or <moneytreelendingllc.com> before the disputed domain name was registered. Thus, the Panel concludes that Respondent has failed to establish any rights to or legitimate interests in the disputed domain name in accord with Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita d/b/a Shanti Yoga Works, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that Respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that Respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also Neiman Marcus Group, Inc. v. Neiman-Marcus, FA 135048 (Nat. Arb. Forum Jan. 13, 2003) (noting that “Complainant has established itself as the sole holder of all rights and legitimate interests in the NEIMAN MARCUS mark,” in holding that Respondent was not commonly known by the <neiman-marcus.net> name, despite naming itself “Neiman-Marcus” in its WHOIS contact information).

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

Registration and Use in Bad Faith

Respondent is using the <moneytreelendingllc.com> domain name to compete directly with Complainant in the financial services arena. The use of Complainant’s service mark to attract Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant’s mark demonstrates Respondent’s registration and use in bad faith under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto. a/k/a Larry Petersons, FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through Respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using Complainant’s famous marks and likeness); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).

Furthermore, by entering the financial services arena through appropriation of Complainant’s service mark in the <moneytreelendingllc.com> domain name, Respondent has exhibited bad faith registration and use of a domain name pursuant to Policy ¶ 4(b)(iii) because Respondent likely registered the disputed domain name primarily for the purpose of disrupting the business of a competitor. See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business).

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

DECISION

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

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

James A. Carmody, Esq., Panelist

Dated:  October 13, 2003

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