WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ally Financial Inc. v. Micheal Ard
Case No. D2018-0034
1. The Parties
Complainant is Ally Financial Inc. of Detroit, Michigan, United States of America (“United States”), represented by CSC Digital Brand Services AB, Sweden.
Respondent is Micheal Ard of Fort Worth, Texas, United States.
2. The Domain Name and Registrar
The disputed domain name <allyfinancialcash.com> is registered with Name.com, Inc. (Name.com LLC) (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 9, 2018. On January 9, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 9, 2018, 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 17, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 6, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 7, 2018.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on March 5, 2018. 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 a United States company, founded by General Motors to provide financing to automotive customers, and which since has expanded to other financial services. Complainant offers online banking, vehicle financing, dealer services, investment and wealth management and commercial financing. Since 2009, Complainant has been operating under the ALLY mark. Complainant has several registered trademarks for ALLY including in the United States, where Respondent lists his address of record. These include United States Registration No. 3667814 (registered August 11, 2009); United States Registration No. 4264894 (registered December 25, 2012); and European Union Trade Mark Registration No. 013056941 (registered November 26, 2014). Complainant is one of the top auto lenders in the United States, with 2016 reported income of USD 1.6 billion, and total assets of USD 163.7 billion, for its 5.6 million customers. Complainant has also received several industry awards, and it is consistently listed as a Fortune 500 company.
Complainant owns the registration for the domain names <ally.com> (registered April 27, 1995) and <allyfinancial.com> (registered July 31, 2007). Complainant has set up websites associated with these domain names. Complainant uses the domain names and associated websites to inform customers about its ALLY mark and its financial services and products.
The disputed domain name <allyfinancialcash.com> was registered on April 20, 2017. Respondent has no affiliation with Complainant. Respondent has used the disputed domain name to resolve to a website that mimics the official website of Complainant, and includes asking consumers for personal information. Complainant has not authorized any activities by Respondent, nor any use of its trademarks thereby.
5. Parties’ Contentions
Complainant contends that (i) disputed domain name <allyfinancialcash.com> is identical or confusingly similar to Complainant’s trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith.
In particular, Complainant contends that it has a well-known mark in the financial services industry. Complainant further contends that it has trademark registrations for ALLY, as well as domain name registrations for variations on this term, along with the word “financial”. Complainant contends that Respondent has merely used the disputed domain name to set up a website meant to lure in customers looking for Complainant and its services, in a “phishing” scheme. Complainant further contends that Respondent has no rights or legitimate interest in the registration or use of the disputed domain name. Rather, Complainant contends that Respondent has acted in bad faith in setting up a website, when Respondent clearly knew of Complainant’s rights.
Respondent did not file a reply to Complainant’s contentions in this proceeding.
6. Discussion and Findings
A. Identical or Confusingly Similar
This Panel must first determine whether the disputed domain name <allyfinancialcash.com> is identical or confusingly similar to a trademark or service mark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. The Panel finds that it is. The disputed domain name directly incorporates Complainant’s registered trademark ALLY, and merely adds the terms “financial” and “cash”, which are descriptive of services offered by Complainant.
Numerous UDRP panels have agreed that supplementing or modifying a trademark with descriptive words does not make a domain name any less “identical or confusingly similar” for purposes of satisfying this first prong of paragraph 4(a)(i) of the Policy. See, for example,General Electric Company v. Recruiters, WIPO Case No. D2007-0584 (transferring <ge-recruiting.com>); Inter-IKEA v. Polanski, WIPO Case No. D2000-1614 (transferring <ikeausa.com>); Microsoft Corporation v. StepWeb, WIPO Case No. D2000-1500 (transferring <microsofthome.com>); CBS Broadcasting, Inc. v. Y2K Concepts Corp., WIPO Case No. D2000-1065 (transferring <cbsone.com>).
The Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in the domain name at issue in a UDRP dispute. For example, paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that Respondent has been “commonly known by the domain name”; or (iii) “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.”
Respondent did not submit a reply to the Complaint, however. Rather, as mentioned in Section 4 of this Panel’s decision, Respondent has used the disputed domain name to divert Internet users to a website that mimics Complaint’s website but which is unaffiliated with Complainant or Complainant’s services. Accordingly, the Panel finds that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interest in the disputed domain name, which Respondent has not rebutted, thereby satisfying paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or of a product or service on [the] website or location”. The Panel finds that the addition of the terms “financial”and “cash”to Complainant’s mark in the disputed domain name may be perceived by Internet users as descriptive of a website where they could find information about Complainant’s online financial services, for consumers in search of cash or cash-related services. As noted in Section 4 of this Panel’s decision, Respondent has set up the disputed domain name to resolve to a website that mimics the official financial services website of Complainant, and includes asking consumers for personal information. Hence, Respondent is trading on the goodwill of Complainant’s trademarks to attract Internet users, presumably for Respondent’s own commercial gain. Given the nature of the site content and the disputed domain name which incorporates Complainant’s original and distinctive ALLY mark, the Panel finds strong evidence that Respondent registered and used the disputed domain name with knowledge of Complainant’s prior rights, thereby evidencing bad faith.
Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith in accordance with paragraph 4(a)(iii) of the Policy.
For all 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 <allyfinancialcash.com> be transferred to Complainant.
Dated: March 11, 2018