Westmore · UDRP DecisionCashconvertersltd.com
The Panel ordered transfer of <cashconvertersltd.com>. It found the domain confusingly similar to the Complainant’s prior CASH CONVERTERS trademark, that the Respondent lacked rights or legitimate interests, and that the domain was registered and used in bad faith. The decisive conduct was use of the domain for a website featuring the CASH CONVERTERS mark and offering services directly competitive with those of the Complainant, thereby creating confusion for commercial gain.
The timeline behind cashconvertersltd.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind cashconvertersltd.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates a straightforward UDRP pattern in which a domain reproduces a trademark and adds a corporate descriptor that may reinforce, rather than dispel, an apparent connection with the trademark owner. The case also shows that an informal apology and asserted takedown do not prevent a transfer where the evidence establishes prior trademark rights, competitive website use, and intentional confusion for commercial gain.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Cash Converters Pty Ltd v. Mirriam Musonda-salati Case No. D2014-1839 1. The Parties Complainant is Cash Converters Pty Ltd of Perth, Western Australia, Australia, represented by Wrays, Australia. Respondent is Mirriam Musonda-salati of Borehamwood, Hertfordshire, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). 2. The Domain Name and Registrar The disputed domain name <cashconvertersltd.com> is registered with Network Solutions, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2014. On October 21, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 22, 2014, the Registrar transmitted by email to the Center its verification response confirming that 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” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on October 23, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 12, 2014. The Center received informal communications from Respondent on October 24, 2014, and on November 13, 2014. Respondent did not file a formal Response. The Center appointed Gary J. Nelson as the sole panelist in this matter on November 19, 2014. 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 is the owner of at least six Australian registrations for the trademark CASH CONVERTERS or for trademarks incorporating CASH CONVERTERS with filing dates and/or registration dates prior to the date the disputed domain name was registered. Similarly, Complainant is the owner of at least two United Kingdom registrations. Specifically, Complainant owns at least the following trademark registrations: Country Reg. no. Mark Date of Registration Australia 510693 CASH CONVERTERS and Design May 16, 1989 Australia 610704 CASH CONVERTERS and Design August 31, 1993 Australia 610705 CASH CONVERTERS and Design August 31, 1993 Australia 610706 CASH CONVERTERS and Design August 31, 1993 Australia 806655 CASH CONVERTERS September 10, 1999 Australia 818553 CASH CONVERTERS December 21, 1999 United Kingdom 1463232 CASH CONVERTERS October 1, 1993 United Kingdom 2588064 CASH CONVERTERS November 25, 2011 The disputed domain name was registered on March 13, 2014. 5. Parties’ Contentions A. Complainant The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complaint has rights. Respondent has no rights or legitimate interests in the disputed domain name. Respondent registered and has subsequently used and is using the disputed domain name in bad faith. Complainant owns registered trademarks and unregistered trademarks for CASH CONVERTERS and for marks incorporating the term CASH CONVERTERS that predate the date Respondent registered the disputed domain name. Complainant is a well-known international pawn broking and short-term loan business with a long association with the CASH CONVERTERS trademark, a company listed on both the Australian Stock Exchange and the London Stock Exchange. The core business of Complainant is the ownership and franchising of retail and financial services stores, which operate as retailers of second hand goods and suppliers of financial products. Over the last twenty years, Complainant has developed and refined its franchise offering to the point where is has multi-store franchise chains in Australia and the United Kingdom and many other countries throughout the world. Complainant’s business was originally established in 1984 with a single store in Perth, Australia. From that first store, Complainant has grown to 146 stores throughout Australia and over 700 stores in 21 countries around the world. Complainant has more than 200 stores in the United Kingdom, with one store in Stevenage which is only six miles from the city where Respondent resides. Complainant has built a strong reputation in the CASH CONVERTERS trademark through substantial marketing and promotional activities. The services provided under the CASH CONVERTERS trademarks include, but are not limited to, pawn brokerage, online retailing of second hand goods, appraisal and valuation services, financial and financing services (including loan services) and the provision of information services and business services relating to second hand dealer services. B. Respondent Respondent did not formally reply to the Complainant’s contentions, but did send two emails directly to the Center containing several comments. These emails are detailed below. Email of October 24, 2014: “I have received the email along with the letter regarding the domain name complaint, at the time the website was being created it was not known that the domain name is use by another company, since this domain name is fairly new and have not made any sales or profit yet I would like to apologise and assure you that effective immediately it will be taken down and the website will be closed and deleted completely. Thanking you in advance for your understanding. Please accept our sincere apology for the misunderstanding.” Email of November 13, 2014: “Thank you, for letting us know you have received the reply to your initial email. The website have already been put down and domain was deleted. Thank you Mirriam.” 6. Discussion and Findings Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and 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 formal 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 shall 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 the disputed domain name should be cancelled or transferred: (i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Complainant has established that it owns prior rights in the CASH CONVERTERS mark and that the disputed domain name is confusingly similar to Complainant’s CASH CONVERTERS mark. Complainant owns at least two trademark registrations in Australia for the word mark CASH CONVERTERS. One of these registrations is for Australian trademark registration No. 818553. The registration date for this trademark ( i.e., December 21, 1999) precedes the date upon which the disputed domain name was registered ( i.e., March 13, 2014). Accordingly, Complainant has established rights in its CASH CONVERTERS mark pursuant to Policy, paragraph 4(a)(i). See Janus International Holding Co. v. Scott Rademacher , WIPO Case No. D2002-0201 (finding that the registration of a mark is prima facie evidence of validity). The disputed domain name <cashconvertersltd.com> is confusingly similar to Complainant’s CASH CONVERTERS trademark because the disputed domain name incorporates the entirety of Complainant’s CASH CONVERTERS trademark and merely adds a generic descriptive term ( i.e. , “ltd”) and the generic Top-Level Domain (“gTLD”) suffix “.com”. Neither the addition of a purely descriptive/generic term to a well-known mark or the addition of a gTLD suffix is typically sufficient to create a distinct domain name capable of overcoming a proper claim of confusing similarity. See Arthur Guinness Son & Co. (Dublin) Limited v. Tim Healy/BOSTH , WIPO Case No. D2001-0026 (finding confusing similarity where the domain name contains the identical mark of the complainant combined with a generic word or term); see also, Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil , WIPO Case No. D2000-1409 (finding that “[n]either the addition of an ordinary descriptive word […] nor the suffix “.com” detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy, paragraph 4(a)(i) is satisfied). In this case the “ltd” portion is a corporate describer commonly known as “limited.” The addition of these three letters to Complainant’s CASH CONVERTERS trademark is insufficient to establish a domain name that is distinct from Complainant’s trademark and insufficient to avoid a finding of confusing similarity. Complainant has proven the requirements of Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Respondent has failed to file a formal Response, which can suggest, in appropriate circumstances, that Respondent lacks rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse. , WIPO Case No. D2000-1221 (finding that the respondent’s failure to respond in a UDRP proceeding can be construed, in appropriate circumstances, as an admission that it has no rights or legitimate interests in a domain name). By not filing a formal Response, Respondent has not provided any evidence that it is commonly known by the disputed domain name, or that it is commonly known by any name consisting of, or incorporating the words “cash” or “converters” or “ltd” or “limited” or any combination of these words or abbreviation. In Charles Jourdan Holding AG v. AAIM , WIPO Case No. D2000-0403 , the panel held that a lack of rights or legitimate interests could be found where (1) the respondent is not a licensee of the complainant; (2) the complainant’s rights in its related trademarks precede the respondent’s registration of the domain name; and (3) the respondent is not commonly known by the domain name in question. The Panel notes that by not submitting a formal Response, Respondent also failed to provide any evidence that it is a licensee of Complainant or that its registration of the disputed domain name predates the establishment of Complainant’s rights in its CASH CONVERTERS mark. Complainant has provided unrebutted evidence showing that Respondent was operating a website at “www.cashconvertersltd.com” that featured Complainant’s CASH CONVERTERS trademark and which offered directly competitive services to those offered by Complainant. Such use of the disputed domain name to resolve to a website that gives the overall impression of some sort of connection with Complainant cannot be considered by the Panel as a bona fide offering of goods or services or as a legitimate noncommercial or fair use. Moreover, Respondent’s decision to add a common descriptive word ( i.e. , “ltd”) to a well-known trademark does not instill Respondent with rights or legitimate interests in the corresponding domain name. See Chanel, Inc. v. Estco Technology Group , WIPO Case No. D2000-0413 (finding that use of a famous trademark to attract the public to a website is not a fair or legitimate use of the domain name, and ordering the transfer of <chanelstor.com> and <chanelfashion.com> to the complainant). The Panel therefore finds that Complainant has proven the requirement of Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith The Panel finds that Respondent registered and is using the disputed domain name in bad faith. The Panel finds that Respondent likely chose the disputed domain name with full knowledge of Complainant’s rights in the CASH CONVERTERS trademark. Complainant has alleged, and Respondent has not rebutted, that Respondent was most likely aware of the rights owned by Complainant in CASH CONVERTERS when Respondent registered the disputed domain name. Supporting this conclusion is the fact Respondent was directly targeting Complainant on its website as part of the services it offered, as evidenced by the excessive use of “Cash Converters Ltd” on each webpage associated with the disputed domain name. The Panel finds this unrebutted allegation to be convincing and sufficient to establish the bad faith registration and use of the disputed domain name. Furthermore, the Panel finds that the use of the disputed domain name falls within one of the express examples of bad faith identified in paragraph 4(b)(iv) of the Policy. By using the disputed domain name to offer services identical to the services offered by Complainant, Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s mark. The Panel therefore finds that Complainant has proven the requirement of Policy, paragraph 4(a)(iii). 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <cashconvertersltd.com> be transferred to Complainant. Gary J. Nelson Sole Panelist Date: November 24, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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