юридическая фирма 'Интернет и Право'
Основные ссылки










Яндекс цитирования

Рассылка 'BugTraq: Закон есть закон'





Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Check Into Cash, Inc. v. Rico Marquez

Case No. D2007-0942

 

1. The Parties

The Complainant is Check Into Cash, Inc., Cleveland, Tennessee, United States of America, represented by Chambliss, Bahner & Stophel, P.C., Chattanooga, Tennessee, United States of America.

The Respondent is Rico Marquez, Navarre, Florida, United States of America.

2. The Domain Name and Registrar

The disputed domain name <checks-into-cash.com> (the “Disputed Domain Name”) is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2007. On June 29, 2007, the Center transmitted by e-mail to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On June 29, 2007, Go Daddy Software transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 4, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 24, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 25, 2007.

The Center appointed Douglas M. Isenberg as the sole panelist in this matter on August 3, 2007. 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 states that it “and its licensed affiliates currently operate 1250 financial services businesses, which offer ‘payday loans’ and other financial services across the United State under the name CHECK INTO CASH”. In support thereof, Complainant has provided as exhibits copies of printouts from the website if the U.S. Patent and Trademark Office, showing its ownership of the following trademark registrations:

- Reg. No. 2,256,904, for the mark CHECK INTO CASH, for use in connection with “consumer loan financing and check cashing services featuring deferred presentment and delayed deposit”; first used in commerce June 1993; registered June 29, 1999.

- Reg. No. 2,266,693, for the mark CHECK INTO CA$H CASH ADVANCE & Design, for use in connection with “consumer loan financing and check cashing services featuring deferred presentment and delayed deposit”; first used in commerce January 1996; registered August 3, 1999.

Collectively, Complainant’s trademark registrations cited above are referred to hereafter as the “CHECK INTO CASH Trademark”.

Complainant also states that it offers its services through a website using the domain name <checkintocash.com>, which was registered on April 1, 1997, by an entity Complainant describes as its “affiliate company”.

The Domain Name was created on April 6, 2005.

 

5. Parties’ Contentions

A. Complainant

In addition to the factual background set forth above, Complaint contends, inter alia, as follows:

- The Disputed Domain Name is identical or confusingly similar to the CHECK INTO CASH Trademark because the only differences between the Disputed Domain Name and one of the CHECK INTO CASH Trademarks – the addition of the letter “s” and two hyphens – “do[] not negate confusion” and are “of no legal consequence”.

- Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because Respondent “has not sought or obtained a license from Complainant”; Respondent “cannot show he is using the Disputed Domain Name in connection with ‘a bona fide offering of goods or services” because Respondent “is a direct competitor of the Complainant who is using [the Disputed Domain Name] to attract Internet users to his site”; Respondent “cannot show… he is making a legitimate non-commercial or fair use of the Disputed Domain Name, without intent for commercial gain and intent to mislead consumers” because “Respondent is using, or has authorized the use of, the Disputed Domain Name to participate in a revenue-generating program whereby he uses Complainant’s mark to direct traffic to his site for the purpose of competing directly with Complainant”; and there is “no evidence that the Disputed Domain Name is the actual legal name of the Respondent or a name that is commonly used to identify the Respondent without violating Complainant’s trademark rights”.

- The Disputed Domain Name was registered and is being used in bad faith because “Respondent is clearly competing with Complainant for the attention of Internet users, which he hopes to divert away from Complainant’s site” in violation of under paragraph 4(b)(iii) of the Policy; Respondent is “using a domain name confusingly similar to [the CHECK INTO CASH Trademark] to compete with or link to [Complainant’s] competitors”, in violation of paragraph 4(b)(iv) of the Policy; “it is reasonable to infer a primary purpose of registration of the Disputed Domain Name was to resell it for a profit”, in violation of paragraph 4(b)(i) of the Policy; and “additional evidence of bad faith is Respondent’s failure to stop using the [Disputed Domain Name] after receiving three cease and desist letters fro Complainant”, copies of which Complainant provided as exhibits to the Complaint.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. Policy, paragraph 4(a).

A. Identical or Confusingly Similar

Based upon the trademark registrations cited by Complainant, it is obvious that Complainant has rights in the CHECK INTO CASH Trademark.

As to whether the Disputed Domain Name is identical or confusingly similar to the CHECK INTO CASH Trademark, the relevant comparison to be made is with the second-level portion of the Disputed Domain Name only (i.e., “checks-into-cash”), as it is well-established that the top-level domain name (i.e., “.com”) should be disregarded for this purpose. See, e.g., The Forward Association, Inc., v. Enterprises Unlimited, NAF Claim No. FA0008000095491 (“[N]either the beginning of the URL (http://www.), nor the TLD (.com) have any source indicating significance. Those designations are merely devices that every Internet site provider must use as part of its address”).

The Disputed Domain Name differs from the CHECK INTO CASH Trademark in only two respects: the Domain Name adds the letter “s” to the word “check” to make it plural, and dashes are added between each of the three words that comprise the Disputed Domain Name. The Panel finds that these additions do not negate the confusing similarity between the Domain Name and the CHECK INTO CASH Trademark. The Panel agrees with the decision cited by Complainant that “adding or deleting the plural ‘s’ from a corporate name is a common mistake consumers make when referring to companies and/or their marks”. Medtronic, Inc. v. gotdomains4sale.com, WIPO Case No. D2001-1033. Further, the presence of the dash is irrelevant. See, e.g., Dr. Grandel GmbH v. West End Internet Services, WIPO Case No. D2005-0853 (a dash in a domain name “add[s] no distinctiveness whatsoever”).

Therefore, the Panel is convinced that Complainant has proven the first element of the Policy.

B. Rights or Legitimate Interests

Complainant alleges, inter alia, that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because Respondent “has not sought or obtained a license from Complainant”; Respondent “cannot show he is using the Disputed Domain Name in connection with ‘a bona fide offering of goods or services” because Respondent “is a direct competitor of the Complainant who is using [the Disputed Domain Name] to attract Internet users to his site”; Respondent “cannot show… he is making a legitimate non-commercial or fair use of the Disputed Domain Name, without intent for commercial gain and intent to mislead consumers” because “Respondent is using, or has authorized the use of, the Disputed Domain Name to participate in a revenue-generating program whereby he uses Complainant’s mark to direct traffic to his site for the purpose of competing directly with Complainant”; and there is “no evidence that the Disputed Domain Name is the actual legal name of the Respondent or a name that is commonly used to identify the Respondent without violating Complainant’s trademark rights”.

Under the Policy, “a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, 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 UDRP”. “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, paragraph 2.1.

Accordingly, as a result of Complainant’s allegations and without any evidence of Respondent’s rights or legitimate interests in the Domain Name, the Panel is satisfied that the Complainant has proven the second element of the Policy.

C. Registered and Used in Bad Faith

Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).

In this case, Complainant alleges with specificity that bad faith exists pursuant to paragraphs 4(b)(i), (iii) and (iv). The Panel is not convinced based on the evidence in the Complaint that Respondent has registered the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring it 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 Disputed Domain Name, as required by paragraph 4(b)(i) of the Policy. However, the Panel is convinced that bad faith exists pursuant to paragraphs 4(b)(iii) and (iv) of the Policy and agrees with the decision cited by the Complainant that “and use of a domain name to redirect Internet users to websites of competing organizations constitutes bad faith registration and use under the Policy”, Edmunds.com, Inc. v. Ult. Search Inc., WIPO Case No. D2001-1319. See also Verisign, Inc. v. jumbo domains, WIPO Case No. D2006-1582 (finding bad faith where “Respondent is using the Disputed Domain Name to redirect visitors to a website that offers products and services that are competitive with those offered by Complainant”).

Therefore, the Panel is convinced that Complainant has proven the third element of the Policy.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <checks-into-cash.com> be transferred to the Complainant.


Douglas M. Isenberg
Sole Panelist

Dated: August 17, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0942.html

 

На эту страницу сайта можно сделать ссылку:

 


 

На правах рекламы:

Произвольная ссылка:





Уважаемый посетитель!

Вы, кажется, используете блокировщик рекламы.

Пожалуйста, отключите его для корректной работы сайта.