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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

AARC, Inc. v. Douglas R. Tubbs; Cyberwire, LLC

Case No. D2007-1272

1. The Parties

Complainant is AARC, Inc., Spartanburg, South Carolina, United States of America, represented by Chambliss, Bahner & Stophel, United States of America.

Respondents are Douglas R. Tubbs; Cyberwire, LLC, Navarre, Florida, United States of America.

2. The Domain Name and Registrar

The disputed domain name <cashadvanceamerica.info> is registered with TierraNet d/b/a DomainDiscover.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2007. On August 31, 2007, the Center transmitted by email to TierraNet d/b/a DomainDiscover a request for registrar verification in connection with the domain name at issue. On August 31, 2007, TierraNet d/b/a DomainDiscover transmitted by email to the Center its verification response confirming that Respondents are 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 Respondents of the Complaint, and the proceedings commenced on September 4, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 24, 2007. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on September 25, 2007.

The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on October 11, 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

The following uncontested facts are summarized from the Complaint and its annexes.

Since 1997, Complainant, or it predecessors in interest, have used the mark ADVANCE AMERICA to advertise its financial services. On October 11, 2005, Complainant obtained the United States trademark registration for ADVANCE AMERICA in connection with financial services in the nature of check cashing, deferred deposits, financial overdraft protection and short-term consumer loans. On February 1, 2005, Complainant obtained the United States trademark registration for $ ADVANCE AMERICA CASH ADVANCE and Design for the same slate of services. Complainant and its licensed affiliates have operated payday advance businesses across the United States of America under the names “Advance America” and “Advance America Cash Advance”. There are currently over 2,800 “Advance America” centers across the United States.

In 1999, Complainant’s affiliate registered the domain names <advanceamerica.net> and <advanceamericacash.com> for the purpose of advertising the “Advance America” services. The website “www.advanceamericacash.com” site directs users to Complainant’s main site, “www.advanceamerica.net”.

On September 14, 2006, Respondents registered the Disputed Domain Name.

On March 13, 2007 and July 17, 2007, Complainant sent Respondents letters demanding transfer of the domain name. Respondents did not reply.

5. Parties’ Contentions

A. Complainant

Respondents registered the Disputed Domain Name without the permission of Complainant. Respondents are using the Disputed Domain Name for commercial purposes, namely to compete with Complainant. The homepage of Respondents’ site displays “Cash Advance America” in bold letters. The site advertises and offers payday advance services. Users may click on a box and apply for a payday loan through Respondents’ site. According to the “Terms of Use” on Respondents’ site, Respondents do not lend money directly but instead match the user’s application with an affiliate lender. Respondents receive a fee from the lender who makes the payday loan for each application processed through the site.

Respondents’ use of the Disputed Domain Name is likely to cause deception, mistake and confusion among consumers seeking information with regard to the services of

Complainant. The Disputed Domain Name is confusingly similar to Complainant’s ADVANCE AMERICA marks. When compared with “Advance America”, the only addition is the word “cash” and when compared with the word portion of the mark ADVANCE AMERICA CASH ADVANCE & Design, the only alteration is the omission of the second “advance”.

Consistent with the Lanham Act, Complainant avers that Respondents cannot have any legitimate rights in the Disputed Domain Name because any such rights are contrary to well-established principles of trademark law and violate Complainant’s trademark rights. Respondents have no rights or legitimate interests in the Disputed Domain Name because a respondent only has a right to a domain name if the trademark owner has specifically granted that right.

Respondents cannot show they are using the domain name in connection with “a bona fide offering of goods or services” because Respondents’ are “Partners” of direct competitors of the Complainant using a domain name confusingly similar to the Complainant’s ADVANCE AMERICA marks to attract Internet users to their site.

Respondents also cannot show they are making a legitimate non-commercial or fair use of the Disputed Domain Name, without intent for commercial gain and intent to mislead consumers. Respondents are using, or have authorized the use of, the Disputed Domain Name to participate in a revenue-generating program whereby they use Complainant’s mark to direct traffic to their site for the purpose of competing directly or directing potential customers to competitors.

Respondents’ actions satisfy Paragraphs 4(b)(iii) and 4(b)(iv) of the Policy because by using the Disputed Domain Name to attract, intentionally for commercial gain, Internet users to their website, they have created a likelihood of confusion with the Complainant as to the source, sponsorship, affiliation, or endorsement of the Respondents’ website. For example, on Respondents’ homepage, there is link bearing “Advance America”. When a user clicks on the link, the following appears:

Advance America Cash, Personal Loans No Fax

No person was ever honored for what he received. Honor has been the reward for what he gave. Replace the word !person! with Advance America in the sentence above and you will be able to know what Advance America is all about. Yes, the name Advance America is synonymous with honor and trust in the payday loan industry. In your moments of temporary cash crunch, it is America cash advance that you can rely upon. Advance America cash loan is not just a payday loan; it is the beginning of a relationship built on trust and respect. Get cash now; repay when you get cash!

B. Respondent

Respondents did not reply to Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(1) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service in which the Complainant has rights;

(2) that the Respondent has no rights or legitimate interests in respect to the disputed domain name; and

(3) that the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

On October 11, 2005, Complainant obtained the registration for the ADVANCE AMERICA mark, approximately 11 months prior to Respondents’ registration of the Disputed Domain Name. It is indisputable that the Disputed Domain Name, <cashadvanceamerica.info> incorporates the ADVANCE AMERICA mark in its entirety. The addition of the generic word “cash” before the word “advance” in Complainant’s mark does nothing to reduce the confusingly similar nature. Complainant is in the business of providing cash advances. See Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 (November 6, 2001). The Panel is aware that Complainant’s ADVANCE AMERICA mark expressly disclaims the use of the word “advance” apart from the mark as shown, but this fact has no bearing on the confusing similarity analysis at hand. It is also well established that the addition of a gTLD such as .info does not significantly diminish the confusing similarity. Accordingly, the Panel finds that Paragraph 4(a)(i) of the Policy is satisfied.

B. Rights or Legitimate Interests

The Panel notes the following in relation to any possible rights or legitimate interests of Respondents in the Disputed Domain Name: (i) there is no evidence that Respondents have been commonly known by the Disputed Domain Name; (ii) the Complainant has not authorized or licensed Respondents to use the Disputed Domain Name or the ADVANCE AMERICA mark; (iii) there is no evidence that Respondents have any proprietary or contractual rights in any registered or common law trademark consisting of or containing the terms “cashadvanceamerica” or “advanceamerica”; (iv) there is no evidence of legitimate, non-commercial or fair use of the Disputed Domain Name.

Complainant has shown that Respondents use the Disputed Domain Name in connection with a website that provides Internet users with access to payday loan services in competition with Complainant. The commercial use of a domain name which incorporates the Complainant’s trademark is generally not a bona fide offering of goods or services. See Cyberbingo Corp. v. Global Gaming Entertainment NV, WIPO Case No. D2006-0973 (November 23, 2006).

The Panel is aware that although “cash advance” is a generic term used to describe the services offered by Respondents, and that “America” can be descriptive of the location in which the services are offered, Complainant has conclusively established that Respondents are not using the Disputed Domain Name in a generic or descriptive manner. Specifically, as referenced in Section 5A above, Respondents’ website contains a hyperlink bearing Complainant’s ADVANCE AMERICA trademark that directs Internet users to a page advertising that “Advance America is synonymous with honor and trust in the payday loan industry.” Thus, it is clear that Respondents did not choose to register the Disputed Domain Name to describe its offering of cash advance services in America, but rather attempted to capitalize on Complainant’s goodwill by adopting a domain name that is confusingly similar to the ADVANCE AMERICA mark. For these reasons, the Panel finds that Paragraph 4(a)(ii) of the Policy is satisfied.

C. Registered and Used in Bad Faith

The Panel finds that Complainant has satisfied its burden of proof in establishing the Respondents’ bad faith registration and use. Paragraph 4(b)(iv) states that evidence of bad faith may include a respondent’s use of a domain name to intentionally attempt to attract, for commercial gain, Internet users to the respondent’s website by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website.

As described above, Complainant has shown that Respondents are not a purveyor of cash advance services that innocently chose the Disputed Domain Name to describe its services, but rather registered and used the Disputed Domain Name in an attempt to mislead Internet users as to Respondents’ affiliation with Complainant. The Panel notes that Respondents are in direct competition with Complainant in the payday loans business, a factor which “aggravates the likelihood of confusion.” Cyberbingo Corp., supra. As further evidence that Respondents must have had notice of Complainant’s mark, the Panel has discovered that according to Complainant’s website, Complainant has nineteen locations within a 50-mile radius of Respondent’s zip code, and nine locations within a 20-mile radius.

Accordingly, the Panel concludes that Complainant has satisfied Paragraph 4(a)(iii) 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, <cashadvanceamerica.info> be transferred to Complainant.


Maxim H. Waldbaum
Sole Panelist

Date: October 17, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1272.html

 

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