WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amscot Corporation v. Micheal Ard
Case No. D2017-1813
1. The Parties
Complainant is Amscot Corporation of Tampa, Florida, United States of America ("United States"), represented by Trenam Kemker, United States.
Respondent is Micheal Ard of Fort Worth, Texas, United States.
2. The Domain Name and Registrar
The disputed domain name <amscotfinancialloans.com> is registered with Name.com, Inc. ("Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("Center") on September 19, 2017. On September 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 20, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing contact information and other details of the registration.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("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 September 22, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 12, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 13, 2017.
The Center appointed Debra J. Stanek as the sole panelist in this matter on October 19, 2017. 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 provides consumer financial services, such as check cashing, bill payment, short-term cash advances, money transfer, and related services from locations in Florida; however, it provides its money order and wire transfer services internationally. It has used the mark AMSCOT for its goods and services for more than 27 years and owns numerous "amscot" and "amscotfinancial" domain names.
The Complainant owns, among others, a United States federal trademark registration for AMSCOT for financial services, which issued in September 2004, a corresponding Canadian trademark registration, which issued in October 2005.
It appears that the disputed domain name was registered on April 23, 2017 and is used for a website that offers loans to consumers.
5. Parties' Contentions
1. Identical or Confusingly Similar
The Disputed Domain Name <amscotfinancialloans.com> is virtually identical to the Complainant's AMSCOT mark. It includes the AMSCOT mark in its entirety; the additional phrase "financial loans" merely describes the services, which are offered by the Complainant.
2. Rights or Legitimate Interests
AMSCOT is an arbitrary and fanciful term created by the Complainant and has no meaning apart from identifying the Complainant and its financial products and services.
The Respondent is not associated with or affiliated with the Complainant in any way. The Complainant has not authorized the Respondent to use its marks.
The Respondent does not own any trademark applications or registrations "in the name 'AMSCOT'"; his business is not generally recognizable by that name, nor is he commonly known as "amscotfinancialloans.com."
The Respondent is using the disputed domain name for commercial gain; however, his use is not bona fide because it is confusingly similar to the Complainant's mark and is being used to attract Internet users to the Respondent's financial services, which compete with those of the Complainant, as well as to a variety sponsored links.
Moreover, the Respondent is not a legitimate, non-commercial use and is not fair use of the domain name.
3. Registered and Used in Bad Faith
The Respondent clearly selected, registered, and used <amscotfinancialloans.com> in bad faith.
The Respondent is a direct competitor of the Complainant in seeking to originate cash advances and pay day loans.
The disputed domain name combines the Complainant's fanciful AMSCOT mark with a description of services that the Complainant and the Respondent each provide. The addition of "financialloans" to AMSCOT does not avoid any consumer confusion; in fact, it may increase confusion.
Following a demand that the Respondent cease using the AMSCOT mark, it appears that the Respondent disabled various elements of his website—links to "Contact Us" and to the terms of service.
The right side of various pages of the Respondent's website list categories consisting of numerous phrased that begin with the Complainant's AMSCOT mark, presumably to bad faith can further be found in this matter as a result of the Respondent's efforts to capture key word searches via Google and other search engines. In addition to including numerous cities in Florida, other links include the name of the Complainant's founder, "Ian MacKechnie."
Furthermore, the contact information in the Respondent's registration is incomplete; the address is for an apartment complex, but does not include a unit or apartment number.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
To prevail, a complainant must prove, as to a disputed domain name, that:
(i) it is identical or confusingly similar to a mark in which complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect to it;
(iii) it has been registered and is being used in bad faith.
Policy, paragraph 4(a).
The Policy provides examples of circumstances that may evidence rights or legitimate interests in a domain name, (see Policy, paragraph 4(c)), as well as those that may evidence bad faith registration and use (see Policy, paragraph 4(b)).
Failure to respond to the Complaint, does not automatically result in a finding for Complainant. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.3. Rather, the Complainant continues to have the burden of establishing the required elements. The Panel may, however, draw such inferences from the Respondent's default as appropriate (see Rules, paragraph 14(b)).
A. Identical or Confusingly Similar
The Complainant has established its rights in the mark AMSCOT mark by virtue of the evidence of its United States and Canadian trademark registrations. See WIPO Overview 3.0, section 1.2.1.
The Respondent's domain name is not identical to the Complainant's marks. As a general matter, the Panel subscribes to the consensus view that the test for confusing similarity is satisfied where the relevant mark is recognizable as such within the domain name, regardless of the addition of descriptive, geographical, pejorative, meaningless, or other terms. See WIPO Overview 3.0, section 1.8.
Here, the addition of the descriptive term "financial loans" after AMSCOT does not differentiate or distinguish the disputed domain name from the Complainant's mark; if anything, the term's connection to the Complainant's services reinforces a connection to the Complainant.
The Panel finds that the disputed domain name is confusingly similar to a mark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Panel shares the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing. See WIPO Overview 3.0, section 2.1 (once complainant makes a prima facie case, burden of showing rights or legitimate interests in the domain name shifts to respondent). Paragraph 4(c) of the Policy sets out examples of how rights and legitimate interests may be established:
(i) before any notice to you 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 (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 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.
The Panel finds that the Complainant has made a prima facie showing under the second element. The Complainant, which established ownership of the AMSCOT mark, has not authorized the Respondent's use of the disputed domain name incorporating the Complainant's trademark. On this record, it does not appear that the Respondent has used the disputed domain name in connection with a bona fide offering. As noted above, the disputed domain name is confusingly similar to the Complainant's mark and is used for services that compete with those offered by the Complainant, including links that appear to capitalize on the reputation and good will of the Complainant, its AMSCOT mark, and the identity of its founder. It does not appear that the Respondent is commonly known by the disputed domain name. Use of the disputed domain name appears to be for commercial purposes and for commercial gain.
The Panel concludes that the Complainant has established that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant must establish that the disputed domain name was registered and is being used in bad faith.
The Complainant's rights in the AMSCOT mark predates the Respondent's registration of the disputed domain name. Given that the Complainant's mark is fanciful and the Respondent's website offers competing services and refers to the Complainant's founder and services, the Panel concludes that the Respondent had actual knowledge of the Complainant's trademark rights and intentionally used the AMSCOT mark to attract visitors for his own commercial gain.
In light of these facts and the adverse inferences that arise from the Respondent's use of incomplete or inaccurate contact information and failure to respond to the Complaint, the Panel finds that the Complainant has established that the Respondent has registered and is using the disputed domain name 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, <amscotfinancialloans.com>, be transferred to the Complainant.
Debra J. Stanek
Date: October 26, 2017