WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CNU Online Holdings, LLC v. Andy Tang
Case No. D2017-0733
1. The Parties
The Complainant is CNU Online Holdings, LLC of Chicago, Illinois, United States of America (“United States”), represented by Foley & Lardner, United States.
The Respondent is Andy Tang of Deerfield Beach, Florida, United States.
2. The Domain Name and Registrar
The disputed domain name <cashnetusa247.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 April 11, 2017. On April 12, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 12, 2017, 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 April 19, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 9, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 10, 2017.
The Center appointed Richard G. Lyon as the sole panelist in this matter on May 24, 2017. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. The Panel has submitted his 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 lending and other financial services, much of them over the Internet through its principal website at “www.cashnetusa.com”. The Complainant holds numerous service marks, registered on the principal register of the United States Patent and Trademark Office (“USPTO”), that incorporate the term CASHNETUSA. The earliest of these referred to in the Complaint issued in 2007.
The Respondent registered the disputed domain name on January 9, 2013. At the disputed domain name the Respondent maintains a website offering “instant loans”; the caption reads “Cash Loans / approval in 1 Hour / Secure and safe /Fast approval / No credit checks”.
In July 2016 the Complainant sent the Respondent a cease-and-desist letter, asserting trademark infringement, but received no reply.
5. Parties’ Contentions
The Complainant contends as follows:
1. The disputed domain name is confusingly similar to the Complainant’s CASHNETUSA marks, differing only by the addition of the numerals “247”, which presumably refer to 24-hour, seven-day-a-week availability.
2. The Complainant has never authorized the Respondent to use its marks. Other than through the website at the disputed domain name the Respondent has never been known by the phrase “cashnetusa”. “On information and belief, Respondent collects consumer contact, personal and sensitive financial information, and then sells the ‘leads’ to Complainant’s competitors.” Such use is not bona fide, as it exploits the goodwill of the Complainant’s marks, which are described as “[having] an outstanding reputation … famous for financial services, and indicate the quality of services originating exclusively with Complainant”. The Respondent thus lacks rights or a legitimate interest in the disputed domain name.
3. The Respondent’s conduct as described in the preceding paragraph is indicative of bad faith because “by using the disputed domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the [Respondent’s] website 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 website or location or of a product or service on its website or location”. Policy, paragraph 4(b)(iv). Because of the competing services offered at the Respondent’s website and the renown of the Complainant’s mark, “the only reason Respondent registered the Domain Name is in order to attract users looking for the Complainant Site, for Respondent’s own commercial gain”.
Further evidence of bad faith includes failure to respond to the Complainant’s cease-and-desist letter and use of false contact information when the Respondent registered the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Standard of Proof in a Default case
The Respondent’s failure to respond to the Complaint does not automatically result in a decision in the Complainant’s favor or require the Panel to automatically accept as true any of the factual allegations in the Complaint. Under the Policy and Rules the Complainant is still required to prove with competent evidence each of the elements of paragraph 4(a) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), paragraph 4.3.
B. Identical or Confusingly Similar
The disputed domain name’s dominant feature, “cashnetusa”, is identical to the Complainant’s USPTO‑registered marks. As the Complainant argues, the addition of the descriptive “247” does not obviate confusion. The Complainant succeeds under paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests; Registered and Used in Bad Faith
As is often the case the requirements of paragraphs 4(a)(ii) and (iii) are interrelated. If the Respondent has used the disputed domain name for a bona fide offering of goods or services, he likely did not register or use the disputed domain name in bad faith. And vice versa, failure to demonstrate bad faith in registration or use may support actual legitimate use.
Contrary to the Complainant’s contention, more than simple identity or substantial similarity between the Complainant’s mark and the disputed domain name is needed to establish either of these Policy elements. With one exception, discussed below, the Complainant must demonstrate by a preponderance of the evidence that the Respondent, by choosing the disputed domain name, targeted the Complainant and its marks, seeking to take advantage of whatever goodwill attaches to those marks. Yell Limited (formerly known as Hibu (UK) Limited) v. Venkat Ganesan, WIPO Case No. D2017-0436.
If the mark at issue is famous or highly distinctive a panel may infer the necessary targeting. See, e.g., BzzAgent, Inc. v. bzzaget.com c/o Nameview Inc. Whois IDentity Shield and Vertical Axis, WIPO Case No. D2010-1187. The Complainant’s contentions, particularly the language quoted from the Complaint in Sections 5.A.2 and 3 above, proceeds upon the notion that the Complainant’s marks fall within this definition. But the Complainant has furnished no proof to support its representative’s assertions to that effect. Unsupported factual allegations in a pleading are by themselves of no force or effect in a Policy proceeding,1 particularly when as here the evidence that might support those allegations is readily available to the party making them, in this instance the Complainant.
And, unlike the cases that the Complainant cites to support its contentions, here the marks are not especially distinctive and to a certain extent are descriptive of the lending services offered by both parties. The Respondent’s site does not mention the Complainant, does not imitate the Complainant’s website, and offers services in a niche not mentioned in the Complaint and, based upon a quick review of the Complainant’s home page, not offered by the Complainant. Without proof of special or unique association of CASHNET with the Complainant (another item duly pleaded but unsupported by any evidence) it would be just as likely that the Respondent selected the disputed domain name for its descriptive value as to ride free on the goodwill of the Complainant’s marks.
This may be so even if as the Complainant asserts the Respondent is infringing its service marks. Infringement is a strict liability tort and includes in some jurisdictions the notion of constructive notice and other presumptions that do not obtain under the Policy (WIPO Overview 3.0, paragraph 3.2.2), and must be proven, with evidence. The Policy has an intent component, requiring proof of bad faith or facts from which a panel may infer bad faith.
The Policy is not an abridged version of an infringement action and this Panel is not “a general domain name court, and the Policy is not designed to adjudicate all disputes of any kind that relate in any way to domain names. Rather, the Policy is narrowly crafted to apply to a particular type of abusive cybersquatting”. The Thread.com, LLC v. Jeffrey S. Poploff, WIPO Case No. D2000-1470. Professional representatives of mark owners must be aware or make themselves aware of these procedural2 and substantive distinctions and not blithely assume equivalence. For example, the Complainant’s claim that the Respondent is causing confusion with the Complainant’s reputation to obtain sensitive financial information from consumers would, if proven with adequate evidence, demonstrate both bad faith and lack of rights or legitimate interests; these matters may not however simply be pleaded “on information and belief”. As with any other factual assertion it must be substantiated. But for the matter referred to in the following paragraph, the Panel would likely have been required to deny the Complaint.
Evidence in the Complaint, though not advanced expressly in support of its allegations of bad faith, does bring the Respondent’s demonstrated conduct within one of the examples of evidence of bad faith in paragraph 4(b) of the Policy. The Complainant cites seven prior Policy proceedings in which this Respondent was found to have registered domain names in violation of the Policy. Each of these cases involved a domain name that mimicked the registered mark of a financial institution and proven conduct similar to that complained of here. Even though each of those cases, unlike this one, involved a mark that contained a distinctive word or phrase, these cases and their holdings3 are more than enough to make out a “pattern of conduct” that bring the circumstances of this case within paragraph 4(b)(ii) of the Policy: “you have 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 you have engaged in a pattern of such conduct”. Paragraph 4(b)(ii) does not require proof of direct targeting;4 the Panel may infer it from the pattern of similar conduct and may according find bad faith in both registration and use. This Panel does so here, holding that the Complainant has met its evidentiary burden under paragraph 4(a)(ii) and (iii).
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 <cashnetusa247.com> be transferred to the Complainant.
Richard G. Lyon
Date: May 25, 2017
1 WIPO Overview 3.0, paragraph 4.3. For a recent illustration involving a mark more distinctive and better known than the Complainant's here, see Consorzio per la Tutela del Formaggio Gorgonzola v. William Wise, WIPO Case No. D2017-0554.
2 See Section 6.A above.
3 For instance: “Since 2013, Respondent has registered and holds hundreds of domain names that blatantly copy the trade names and trademarks of legitimate commercial businesses in the financial sector, piggybacking on the successful branding efforts of Complainant and scores of others.” CircleBack Lending, Inc. v. Andy Tang, Claim Number FA 1603001667870 (Forum April 28, 2016) (internal record citations omitted).