Kmoneymart.com

The timeline behind kmoneymart.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Dollar Financial Group, Inc. v. Bankshire Corp. Claim Number: FA0706001013686 PARTIES Complainant is Dollar Financial Group, Inc. (“Complainant”), represented by Hilary B. Miller, 112 Parsonage Road, Greenwich, CT 06830-3942 . Respondent is Bankshire Corp. (“Respondent”), 6860 Glen Erin Dr. Suite 1, Mississauga, ON L5N 2E1, Canada. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <kmoneymart.com>, registered with Wild West Domains, 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 electronically on June 21, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 22, 2007. On June 21, 2007, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <kmoneymart.com> domain name is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, 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 June 22, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 12, 2007 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@kmoneymart.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On July 20, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 <kmoneymart.com> domain name is confusingly similar to Complainant’s MONEY MART mark. 2. Respondent does not have any rights or legitimate interests in the <kmoneymart.com> domain name. 3. Respondent registered and used the <kmoneymart.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Dollar Financial Group, Inc., holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the MONEY MART mark (Reg. No. 2,244,158 issued May 11, 1999). Complainant also holds a trademark registration with the Canadian Intellectual Property Office (“CIPO”) for the MONEY MART mark (Reg. No. TMA 297,783 issued December 7, 1984). Complainant has used the MONEY MART mark in connection with the international sale of subprime consumer loans and other consumer financial services. Complainant has earned over one billion dollars in sales using the MONEY MART mark. Complainant has registered the <moneymart.com> and <moneymart.ca> domain names, which it uses in connection with the sale of its consumer loans services and goods. Respondent registered the <kmoneymart.com> domain name on March 3, 2005. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website offering consumer loan goods and services in direct competition with Complainant’s goods and services under the MONEY MART mark. 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”). 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 established rights in the MONEY MART mark under Policy ¶ 4(a)(i) through registration of the mark with both the USPTO and CIPO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Symbol Techs. Can., ULC v. Barcode Sys. Inc., FA 249359 (Nat. Arb. Forum June 3, 2004) (holding that “Complainant has rights to the SYMBOL (and design) mark resulting from registration with the Canadian Intellectual Property Office….”). Respondent’s <kmoneymart.com> domain name is confusingly similar to Complainant’s MONEY MART mark as it uses the mark in its entirety and adds the letter “k” and the generic top-level domain (“gTLD”) “.com” to the mark. First, the Panel finds that the mere addition of the letter “k” to the mark does not distinguish the mark sufficiently from the disputed domain name to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to the complainant’s mark, ICQ); see also abc distributing, LLC v. Tharp, FA 338548 (Nat. Arb. Forum Nov. 24, 2004) (“The domain name <abctdistributing.com> is confusingly similar to Complainant’s ABC DISTRIBUTING, INC mark. The Panel finds the domain name confusingly similar to Complainant’s mark because merely adding the single letter “t” to Complainant’s mark fails to sufficiently distinguish the domain name from the mark.”). Further, the Panel holds, as prior panels have previously held, that the addition of a gTLD such as “.com” is irrelevant to the determination of whether a domain name is confusingly similar to the mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant argues that Respondent does not have rights or legitimate interests in the <kmoneymart.com> domain name. Complainant’s submission establishes a prima facie case which shifts the burden to Respondent to show that it has rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Caterpillar Inc. v. Ravo, FA 991824 (Nat. Arb. Forum July 9, 2007) (“Complainant having made a prima facie case that Respondent lacks rights or legitimate interests in the domain name, the burden shifts to Respondent to show he does have rights or legitimate interests.”). The Panel may assume that Respondent lacks rights or legitimate interests here because Respondent failed to respond to the Complaint, which the panel in Bank of America Corp. v. McCall held results in a failure to meet the burden to show Respondent has rights or legitimate interests in the domain name and is also evidence that Respondent lacks those rights under Policy ¶ 4(a)(ii). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). However, the Panel will consider all available evidence before determining whether Respondent has rights or legitimate interests under Policy ¶ 4(c). Complainant asserts that Respondent is using the <kmoneymart.com> domain name to redirect Internet users to Respondent’s website offering consumer loan goods and services that directly compete with Complainant’s goods and services offered under the MONEY MART mark. The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to Respondent’s competing website is not a use in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); see also Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”). Additionally, Respondent is not commonly known by the <kmoneymart.com> domain name. Respondent’s WHOIS information identifies Respondent as “Bankshire Corp.” Therefore, the Panel finds that Respondent does not have rights or legitimate interests under Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also Brown v. Sarrault, FA 99584 (Nat. Arb. Forum Oct. 16, 2001) (finding that the respondent was not commonly known by the <mobilitytrans.com> domain name because it was doing business as “Mobility Connections”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent has registered and is using the <kmoneymart.com> domain name, which is confusingly similar to Complainant’s MONEY MART mark, to redirect Internet users to its own commercial website offering goods and services in direct competition with Complainant’s goods and services under the MONEY MART mark. The Panel finds that such use by Respondent constitutes disruption, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). Additionally, Respondent is using the <kmoneymart.com> domain name to redirect Internet users to its website, which sells competing goods for the profit of Respondent. The Panel finds that Internet users seeking Complainant’s website may become confused as to Complainant’s affiliation with Respondent’s website. Respondent is profiting from this confusion through the sale of competing goods and services. Therefore, the Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to Respondent’s competing website is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. 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 <kmoneymart.com> domain name be TRANSFERRED from Respondent to Complainant. James A. Carmody, Esq., Panelist Dated: July 30, 2007 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.