WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Curo Intermediate Holdings Corp., v. Speedy Cashh, SpeedyCashh
Case No. D2016-2239
1. The Parties
The Complainant is Curo Intermediate Holdings Corp. of Wichita, Kansas, United States of America, represented by Berkowitz Oliver LLP Law Firm, United States of America.
The Respondent is Speedy Cashh, SpeedyCashh of Ahmedabad, Gujarat, India.
2. The Domain Name and Registrar
The disputed domain name <speedycashh.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 3, 2016. On November 3, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 4, 2016, the Registrar transmitted by email 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" 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 8, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 28, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 13, 2016.
The Center appointed Antony Gold as the sole panelist in this matter on December 13, 2016. 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 Complainant is a Delaware corporation with its principal place of business in Kansas City, Missouri, United States of America. It is the owner of several US trade mark registrations for SPEEDY CASH, including the following:
- U.S. Registration No. 2677082 for the mark SPEEDY CASH (logo) registered on January 21, 2003 in class 36 for services including check cashing;
- U.S. Registration No. 2966547 for the mark SC SPEEDY CA$H registered on July 12, 2005 in class 36 for services including temporary loans and check cashing; and
- U.S. Registration No. 3563682 for the word mark SPEEDY CASH registered on January 20, 2009 in class 36 for services including arranging loans, temporary loans and check cashing.
The Complainant and its affiliates use the Complainant's trade marks for the provision of short-term loans and other financial services. An affiliate of the Complainant is the registered owner of the domain name <speedycash.com> and the Complainant and its affiliates trade as "Speedy Cash" through a website to which this domain name points. The Complainant and its affiliates own the copyright in the contents of this website. The visual elements of the website include a white background with dark green headers and footers, dark green lettering, red buttons, a red SC SPEEDY CA$H logo and a "Speedy Roo" kangaroo mascot as well as photographs of individuals who are actual or purported customers of the Complainant.
The disputed domain name was registered by the Respondent on August 10, 2016. The disputed domain name points to a website the pages of which, in both form and content, substantially replicates the Complainant's website in that it contains each of the features outlined above. The website purports to offer the same services as those provided by the Complainant.
The representatives for the Complainant sent a cease and desist letter to the Respondent on September 22, 2016 asking the Respondent to take a number of steps including to cease its use of the website associated with the disputed domain name and to cancel registration of the disputed domain name. The Respondent did not reply nor did it comply with the Complainant's requests.
5. Parties' Contentions
(i) The disputed domain name is identical or confusingly similar to the Complainant's trade marks.
The Complainant says that it is the owner of a number of registered trade marks for SPEEDY CASH, including those described above. The Complainant states that each of the trade marks has been registered for more than 5 years. The Complainant states that it makes use of the trade marks in connection with the provision of financial services, specifically, short term lending and payday loans to consumers, through the website described above.
The Complainant says that the disputed domain name incorporates its SPEEDY CASH marks entirely. It points out that the disputed domain name varies from its SPEEDY CASH trade marks only by the addition of one letter, namely an extra "h" at the end of "cash". It draws attention to the confusing visual similarities between its website and that operated by the Respondent for substantially the same purposes.
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant asserts that the Respondent is not making any legitimate use of the disputed domain name, nor does it have any rights in it, nor any permission from the Complainant to use any of its trade marks. The Complainant says that it is unaware of any connection of the Respondent with the name "Speedy Cashh".
The Complainant provides a side by side comparison of screenshots from the website resolved to by the disputed domain name and its own website in order to demonstrate what it says are deliberate choices by the Respondent to copy both prominent visual elements of the Complainant's website, including the white background, green lettering, red button and use of the "Speedy Roo" Kangaroo mascot, as well as the text. The Complainant contends that the Respondent's use of the disputed domain name, namely to host a "counterfeit" replica of the Complainant's website, is fraudulent and malicious.
The Complainant says that numerous links from the website resolved to by the disputed domain name are non-functioning and that those that do work, resolve to social media accounts and handles owned and operated by the Complainant and its affiliates. The Complainant explains that the Complainant's contact information has been removed by the Respondent from its website and replaced by its own contact information. It says that this provides irrefutable evidence that the Respondent lacks any legitimate rights or interest in the disputed domain name.
(iii) The disputed domain name was registered and is being used in bad faith.
The Complainant alleges that the Respondent registered and is using the disputed domain name for fraudulent purposes. The Complainant says that the Respondent's use of the disputed domain name in order host a replica of the Complainant's website will will confuse and abuse consumers. It says that the Respondent's website trades on the Complainant's intellectual property rights and goodwill in order deliberately to achieve this objective.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Dealing, first, with the Respondent's failure to serve a response to the Complaint, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under, these Rules, the Panel shall be entitled to draw such inferences from this omission as it considers appropriate.
Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements in order to succeed in its Complaint:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of 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
The Complainant has established, by providing evidence of its registered trade marks, that it has trade mark rights in SPEEDY CASH.
The disputed domain name is substantially the same as SPEEDY CASH save that an additional "h" has been added at the end of "cash" and, as is necessarily the case when trade marks comprising two or more words are used as domain names, there is no space between "speedy" and "cashh". Such minor differences between the disputed domain name and the Complainant's SPEEDY CASH trade marks do not render the disputed domain name aurally, visually or phonetically distinctive from them. The disputed domain name is accordingly similar to those marks.
This similarity is confusing because many Internet users familiar with the English language would, assume that "cashh" is a misspelling of "cash". Irrespective of the actual use to which the disputed domain name has been put, such users would assume that the services provided from any website to which the disputed domain name points would be substantially or entirely the same as those provided by the Complainant through its own website. As the panel in Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698, pointed out "The use to which the site is put has no bearing upon the issue whether the domain name is confusingly similar to the trademark, because by the time Internet users arrive at the Website, they have already been confused by the similarity between the domain name and the Complainant's mark into thinking they are on their way to the Complainant's Website".
Accordingly, the Panel finds that the disputed domain name is confusingly similar to trade marks in which the Complainant has rights.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides non-exhaustive examples of how a respondent might demonstrate that it has rights or legitimate interests in a domain name. In summary, these are if a respondent has used or prepared to use the domain name in connection with a bona fide offering of goods and services, if a respondent has been commonly known by the domain name, or if a respondent has made a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark in issue.
This Panel finds that the Complainant has made out a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. The Respondent does not appear to be commonly known by the name "Speedy Cash" or by any similar name. It has no connection or affiliation with the Complainant, and the Complainant has not licensed or otherwise authorised the Respondent to use or register any domain name incorporating the Complainant's trade mark. The use of the disputed domain name to point to a copycat website of the Complainant's website does not constitute a legitimate noncommercial or fair use of the disputed domain name nor a use in connection with a bona fide offering of goods or services.
Having regard to the above, there is no known right or legitimate interest of the Respondent in the disputed domain name and the Respondent has not come forward with any explanation at all to justify its registration of the disputed domain name, either in response to the cease and desist letter sent on behalf of the Complainant or by way of reply to the Complaint.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interest with respect to the disputed domain name.
C. Registered and Used in Bad Faith
As at the time of registration by the Respondent of the disputed domain name on August 10, 2016, the Complainant's business was well established. Very shortly thereafter, the Respondent pointed the disputed domain name to a website which had evidently been copied wholesale from the Complainant's website and which purports to offer substantially identical services points to those provided by the Complainant. The most notable difference between the websites is simply that the Respondent has replaced the contact information provided by the Complainant with its own contact details.
The Respondent clearly had the Complainant's SPEEDY CASH trade marks and business in mind as at the date of registration of the disputed domain name and promptly pointed the disputed domain name to a website which was intended either to deliberately deceived Internet users into thinking that it was the Complainant's website or that the Respondent was authorized by the Complainant to provide similar services, or that it was otherwise connected to the Complainant.
Paragraph 4(b)(iv) of the Policy, provides a domain name will be found to have been registered and used in bad faith if by its use of the domain name, a respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The facts as set out in the Complaint establish that this is exactly what the Respondent has sought to do. The Panel accordingly finds that the disputed domain name was both registered and is being used in bad faith.
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 <speedycashh.com> be transferred to the Complainant.
Date: December 29, 2016