DECISION

Dollar Financial Group, Inc. v. David Singer a/k/a DS a/k/a Security Home Loans

Claim Number:  FA0406000282770

PARTIES

Complainant is Dollar Financial Group, Inc. (“Complainant”), represented by Hilary B. Miller, 112 Parsonage Road, Greenwich, CT 06830-3942.  Respondent is David Singer a/k/a DS a/k/a Security Home Loans (“Respondent”), 26527 Agoura Road #200, Calabasas, CA 91302.

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <loansmart.org> and <loansmart.info>, registered with Enom.

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 June 4, 2004; the Forum received a hard copy of the Complaint on June 7, 2004.

On June 7, 2004, Enom confirmed by e-mail to the Forum that the domain names <loansmart.org> and <loansmart.info> are registered with Enom and that Respondent is the current registrant of the names. Enom has verified that Respondent is bound by the Enom 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 June 9, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 29, 2004 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@loansmart.org and postmaster@loansmart.info 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 July 6, 2004, 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 names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <loansmart.org> and <loansmart.info> domain names are confusingly similar to Complainant’s LOAN MART mark.

2. Respondent does not have any rights or legitimate interests in the <loansmart.org> and <loansmart.info> domain names.

3. Respondent registered and used the <loansmart.org> and <loansmart.info> domain names in bad faith.

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

FINDINGS

Complainant, Dollar Financial Group, Inc., is a nationally known originator of small consumer loans.  Since 1997, Complainant has spent millions of dollars advertising its computer financial services and originated over $500,000,000 in consumer loans. 

Complainant registered the LOAN MARK service mark on September 29, 1998 with the U.S. Patent and Trademark Office (“USPTO”) (Reg. No. 2,192,247).  Complainant also uses a website to trade its services, employing the LOAN MART mark at <loanmart.net>.

Respondent registered the <loansmart.org> domain name on July 24, 2002.  Respondent registered the <loansmart.info> domain name on November 18, 2001.  Respondent uses the disputed domain names to arrange third-party credit for consumer borrowers using the Internet.  Respondent describes its services as “computer lending services.”

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 rights to the LOAN MART mark as evidenced by its registration with the USPTO.  See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption).

Respondent’s <loansmart.org> and <loansmart.info> domain names are confusingly similar to Complainant’s LOAN MART mark.  The only difference between the domain names and the mark is the addition of the letter “s” and the omission of the space between words, which does not substantially distinguish the <loansmart.org> and <loansmart.info> domain names from the LOAN MART mark.  See Nat’l Geographic Soc. v. Stoneybrook Inv., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to Complainant’s “National Geographic” mark); see also Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from Complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it).

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

Rights or Legitimate Interests

Respondent has not filed a Response.  In the absence of a Response, the Panel may construe all reasonable assertions in the Compliant 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 Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).

Respondent is using the disputed domain names to attract Internet users and offer services similar to Complainant’s services.  Appropriating another’s mark to offer similar services is not a bona fide offering of goods or services, pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name, pursuant to Policy ¶ 4(c)(iii).  See N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no rights or legitimate interests in a domain name that diverted Internet users to Respondent’s competing website through the use of Complainant’s mark); see also MBS Computers Ltd. v. Workman, FA 96632 (Nat. Arb. Forum Mar. 16, 2001) (finding no rights or legitimate interests when Respondent is using a domain name identical to Complainant’s mark and is offering similar services).

While Respondent’s WHOIS information implies that it is commonly known by the <loansmart.org> and <loansmart.info> domain names, the Panel finds that its use of the “loansmart” moniker is solely to appropriate Complainant’s goodwill.  Therefore, Respondent does not have any rights or legitimate interests in the domain names, pursuant to Policy ¶ 4(c)(ii).  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).

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

Registration and Use in Bad Faith

Respondent is appropriating Complainant’s mark to lure customers to the <loansmart.org> and <loansmart.info> domain names.  Respondent is offering services that are similar to Complainant’s services.  By luring customers to offer services similar to Complainant’s services, the Panel finds that Respondent has registered and used the <loansmart.org> and <loansmart.info> domain names to disrupt Dollar Financial Group’s business, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that Respondent registered and used the domain name <eebay.com> in bad faith where Respondent has used the domain name to promote competing auction sites); see also Hewlett Packard Co. v. Full Sys., FA 94637 (Nat. Arb. Forum May 22, 2000) (finding that Respondent registered and used the domain name primarily for the purpose of disrupting the business of Complainant by offering personal e-mail accounts under the domain name <openmail.com> which is identical to Complainant’s services under the OPENMAIL mark).

The Panel infers that the Respondent is creating confusion between its <loansmart.org> and <loansmart.info> domain names and Complainant’s LOAN MART marks for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where Respondent made no use of the domain name in question and there are no other indications that Respondent could have registered and used the domain name in question for any non-infringing purpose); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that Respondent intentionally attempted to attract Internet users to his website for commercial gain by creating a likelihood of confusion with Complainant’s mark and offering the same chat services via his website as Complainant).

Therefore the Panel finds that Complainant has established Policy ¶ 4(a)(iii).

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 <loansmart.org> and < loansmart.info> domain name be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  July 20, 2004

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