WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CompuCredit Holdings Corporation, CompuCredit Intellectual Property Holdings Corp. II v. Cyberwire, LLC.
Case No. D2010-1321
1. The Parties
Complainant is CompuCredit Holdings Corporation, CompuCredit Intellectual Property Holdings Corp. II of Atlanta, Georgia, United States of America, represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
Respondent is Cyberwire, LLC. of Gulf Breeze, Florida, United States of America.
2. The Domain Name and Registrar
The disputed domain name <purposecashadvancecom.com> (the “Domain Name”) is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 4, 2010. On August 5, 2010, the Center transmitted by e-mail to GoDaddy.com, Inc. a request for registrar verification in connection with the Domain Name. On August 7, 2010, GoDaddy.com, Inc. transmitted by e-mail 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 August 10, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent of its default on August 31, 2010.
The Center appointed Robert A. Badgley as the sole panelist in this matter on September 6, 2010. 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 facts are alleged in the Complaint, supported by annexes in the record, and unrebutted by Respondent.
Complainant describes itself as a provider of financial services to consumers who are underserved by traditional financial institutions. Complainant’s business segments include: credit cards; innovative and non-traditional debt recovery solutions; retail micro-loans; and automobile lending.
Complainant’s subsidiary is the registrant of the domain name <purposecashadvance.com>, which was created on August 30, 2005. Complainant uses this domain name in connection with a website that offers consumers a “secure online application [that] provides a quick and confidential way to apply for a loan.”
Complainant holds two registered trademarks with the United States Patent and Trademark Office for the mark PURPOSE CASH ADVANCE. Both marks indicate a first use in commerce of March 19, 2009, and the marks were registered on July 7, 2009 and July 21, 2009, respectively. The services offered under these marks are as follows: “Providing short term cash advances; installment loans; payday loans; financial services, namely, credit, debit and cash-advance transaction services offered via electronic kiosks.”
Respondent registered the Domain Name on June 29, 2009. Respondent is using the Domain Name in connection with a website that purports to offer customers a “100% confidential and secure application [that] can get you the cash you need quickly.” The content at Respondent’s site largely mimics, often verbatim, the content at Complainant’s main website.
5. Parties’ Contentions
Complainant’s salient factual contentions are set forth in the “Factual Background” section above. Complainant claims that Respondent registered the Domain Name which is identical or confusingly similar to a trademark in which Complainant has rights, that Respondent lacks rights or legitimate interest in the Domain Name, and that Respondent registered and is using the Domain Name in bad faith. Complainant’s arguments will be discussed in the “Discussion and Findings” section below.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy:
(i) the 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 respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant clearly has registered trademark rights in the mark PURPOSE CASH ADVANCE, and it is undisputed that Complainant was using the mark in commerce for three months prior to Respondent’s registration of the Domain Name. The only difference between the mark and the Domain Name is the latter’s addition of the letters “com” at the end of the Second-Level Domain, i.e., just before the “.com” Top-Level Domain or “extension”. The Panel finds that the mere addition of these three letters does not overcome the confusing similarity created by the identity of the words “purpose cash advance” in the dominant portion of the Second-Level Domain. See Nutri/System IPHC, Inc. v. Larry Mims, WIPO Case No. D2008-0657 (transferring <nutrasystemcom.com>).
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant bears the burden of proof on the “rights or legitimate interests” issue (as it does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited, WIPO Case No. D2001-0122. Nevertheless, the panel in PepsiCo, Inc. v. Amilcar Perez Lista d/b/a Cybersor, WIPO Case No. D2003-0174, rightly observed as follows: “A respondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a complainant which are not unreasonable and leaves the respondent open to the legitimate inferences which flow from the information provided by a complainant.” As noted above, Respondent did not file a Response and hence did not attempt to rebut any of Complainant’s assertions.
There is no evidence that Respondent has ever been authorized to use Complainant’s mark in a domain name or otherwise. Likewise, there is no evidence that Respondent is commonly known by the Domain Name, or has made substantial preparations to use the Domain Name in connection with a bona fide offering of goods or services. The purported offering, through a website located at a confusingly similar domain name, of goods or services that directly compete with Complainant’s services is not a bona fide offering of goods or services. This may be inferred from the decision in Beemak Plastics, Inc. v. WestRep Group, WIPO Case No. D2001-1023. Finally, Respondent has not claimed any noncommercial or fair use of the PURPOSE CASH ADVANCE mark in the Domain Name, and the Panel finds no basis for recognizing any such use.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use the Domain Name in bad faith:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that Respondent 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent had Complainant’s mark in mind when registering the Domain Name. This is easily inferred by the striking similarity between the website at the Domain Name and Complainant’s main website and Trademark.
The Panel further finds that Respondent is in bad faith within the meaning of paragraph 4(b)(iii). The offerings at Respondent’s website appear to be in direct competition with Complainant’s services.
The Panel also finds bad faith under paragraph 4(b)(iv). Again, the similarity of the parties’ websites, coupled with the additional “com” at the end of Respondent’s second-level domain, leads to the conclusion that Respondent is seeking to attract Internet users who inadvertently type a second “com” while keying Complainant’s main domain name into an Internet browser bar. It is easy to conclude, from the commercial nature of Respondent’s website, that the Domain Name was registered and is being used in an intentional attempt to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s site.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied.
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 <purposecashadvancecom.com> be transferred to Complainant.
Robert A. Badgley
Dated: September 20, 2010