Administrative panel decision dollar Bank, Federal Savings Bank V rasin trirattanachote / WhoisGuard, Inc




Yüklə 32.76 Kb.
tarix16.04.2016
ölçüsü32.76 Kb.


group 2

ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Dollar Bank, Federal Savings Bank v. rasin trirattanachote / WhoisGuard, Inc

Case No. D2015-1674



1. The Parties

The Complainant is Dollar Bank, Federal Savings Bank of Pittsburgh, Pennsylvania, United States of America (“United States”), represented by Metz Lewis Brodman Must O'Keefe LLC, United States.


The Respondent is rasin trirattanachote of Chiang Mai, Thailand / WhoisGuard, Inc of Panama, Panama.


2. The Domain Name and Registrar

The disputed domain name (the “Domain Name”) is registered with NameCheap, Inc. (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 21, 2015. On September 22, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 23, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 25, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 25, 2015.


The Center verified that the Complaint together with the amended 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 October 1, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 21, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 23, 2015.
The Center appointed David Taylor as the sole panelist in this matter on November 5, 2015. 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 United States bank corporation, and the owner of trade mark rights for DOLLAR BANK LOAN CENTER, including United States trade mark registration No. 1,867,188, registered on December 13 1994 in class 36.



The Domain Name was registered by the Respondent on August 17, 2015.


The Domain Name was resolving to a website that purports to provide bank-related services, namely “cash payday loans”, although at the time of writing this decision it is no longer resolving.



5. Parties’ Contentions

A. Complainant

The Complainant asserts that is a United States bank corporation, and the owner of trade mark rights to DOLLAR BANK LOAN CENTER. As evidence, it has submitted a copy of its trade mark registration with the United States Patent and Trademark Office (“USPTO”). The Complainant asserts that it has used its trade mark since December 13, 1994 in connection with banking and providing financial information in the field of banking.


The Complainant asserts that the Domain Name incorporates its trade mark in its entirety. As such, the Complainant argues that the Domain Name is identical and/or confusingly similar to the trade mark in which it has earlier registered rights.
The Complainant asserts that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant submits that it has not granted any permission to the Respondent to use the Domain Name. The Complainant also states that the Respondent is not using the Domain Name in connection with a bona fide offering of goods or services and that, to the best of the Complainant’s knowledge, the Respondent has not been commonly known by a name consisting, in whole or in part, of the terms “dollar bank loan center” or its substantial equivalent. The Complainant also asserts that the Respondent is not an agent or licensee of the Complainant. The Complainant asserts that the Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain, due to the misleading nature of the Domain Name and the Respondent’s use of the Domain Name to point to a website which misleads consumers into believing they are dealing with a reputable bank, the Complainant. The Complainant argues that the name of the Respondent does not appear anywhere on the website and that the Respondent is attempting to confuse the public by implying that the Domain Name points to the Complainant’s official website or, at the very least, that it has a connection to the Complainant.
The Complainant submits that the Respondent registered the Domain Name to intentionally attempt to attract for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website. The Complainant states that the Domain Name is confusingly similar and actually identical to the Complainant’s trade mark, and that the Respondent is using it for commercial purposes. Furthermore, the Complainant argues that by creating a website which closely imitates the Complainant’s line of business, the Respondent is attempting to attract Internet users to its website. Given the similarity with the Complainant’s services, the Complainant argues that it is not immediately apparent to Internet users visiting the website that it is not operated by the Complainant. The website purports to provide “cash payday loans” via online applications, a transaction directly relating to the purpose of the Complainant’s trade mark and the Complainant’s business of banking and finance. Neither the Complainant nor any agent of the Complainant has authorized the use of the Domain Name by the Respondent, namely, the Respondent’s use of an identical name to attract users and generate business.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.




6. Discussion and Findings

Paragraph 4(a) of the Policy provides that to obtain the transfer of the Domain Name, the Complainant must prove the following three elements:


(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) the 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.
Paragraph 15(a) of the Rules provides that the Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. Furthermore, paragraphs 10(b) and 10(d) of the Rules provide that the Panel shall ensure that the parties are treated with equality and shall determine the admissibility, relevance, materiality, and weight of the evidence.
In addition, 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, the Rules, the Panel shall draw such inferences therefrom as it considers appropriate.
The Panel notes that the Respondent did not reply to the Complainant’s contentions. The Respondent’s failure to respond, however, does not automatically result in a decision in favor of the Complainant, although the Panel is entitled to draw appropriate inferences therefrom, in accordance with paragraph 14(b) of the Rules. See paragraph 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
Taking the aforementioned provisions into consideration, the Panel finds as follows:

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires the Panel to consider first whether the Complainant has established relevant trade mark rights. The Complainant has provided evidence that it has a registered (service) trade mark for DOLLAR BANK LOAN CENTER. The Panel is therefore satisfied that the Complainant has established relevant trade mark rights.


The Panel is also required under paragraph 4(a)(i) of the Policy to examine whether the Domain Name is identical or confusingly similar to the Complainant’s trade mark. The Panel notes that the Domain Name incorporates the Complainant’s DOLLAR BANK LOAN CENTER service trade mark in its entirety. Prior panels deciding under the Policy have held that “when a domain name wholly incorporates a complainant’s registered mark that is sufficient to establish identity or confusing similarity for purposes of the Policy.” See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
The top-level suffix in the domain name (e.g., “.com”) is generally disregarded under the confusing similarity test as it is a functional element, except in certain cases where the applicable top-level suffix may itself form part of the relevant trade mark. See paragraph 1.2 of the WIPO Overview 2.0.
The Panel considers that in the present case the new generic Top-Level Domain “.xyz” may be disregarded for the purpose of the first test. Moreover, the test under paragraph 4(a)(i) of the Policy is a relatively low threshold test that essentially serves as a standing requirement. See paragraph 1.2 of the WIPO Overview 2.0.
The Panel therefore finds that the Domain Name is identical to the Complainant’s trade mark.
The Complainant has therefore satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy requires a complainant to demonstrate that the respondent has no rights or legitimate interests in the domain name. Paragraph 4(c) of the Policy sets out a list of non-exhaustive circumstances that may suggest that a respondent has rights or legitimate interests in a domain name, including:


“(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 non-commercial 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.”
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. The complainant is therefore required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to establish that it has rights or legitimate interests in the domain name. See paragraph 2.1 of the WIPO Overview 2.0.
The Panel finds that the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the Domain Name. The Complainant has trade mark rights for DOLLAR BANK LOAN CENTER since 1994 and has stated that it has not granted permission to the Respondent to make any use of its trade mark. There is no indication that the Respondent is “commonly known” by the Domain Name. The Complainant argues that the Respondent’s use of the Domain Name, which identically reproduces the Complainant’s trade mark, to resolve to a website that provides services that are similar or identical to the Complainant’s services, is neither use in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name, as it is misleading Internet users into thinking that they are dealing with the Complainant, a legitimate bank.
The Respondent had an opportunity to respond but chose not to do so. In the absence of any response or explanation from the Respondent, the Panel infers that, on balance, the Respondent does not have rights or legitimate interests in the Domain Name.
The Complainant has therefore satisfied paragraph 4(a)(ii) of the Policy.


C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy requires the Complainant to demonstrate that the Domain Name was registered and used in bad faith. Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, including: "(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.”


The Domain Name identically reproduces the Complainant’s DOLLAR BANK LOAN CENTER service trade mark, which has been registered since well before the Domain Name was registered, by over 20 years. However, the fact that the Complainant’s trade mark registration pre-dates the registration of the Domain Name is by itself insufficient to demonstrate bad faith registration. See Thuisbezorgd.nl B.V. and Takeaway.com B.V. v. WhoisGuard Protected, WhoisGuard, Inc. / MK, M. Khelifi, WIPO Case No. D2015 0431. In the Panel’s view, a finding of bad faith registration under the Policy generally requires at least some evidence that the Respondent had knowledge of the Complainant and its rights. The Complainant, however, has submitted a very brief Complaint and has merely asserted that it is a “reputable bank”, without providing any evidence that would suggest that the Respondent would have been aware of the Complainant’s activities and that it registered the Domain Name targeting the Complainant’s trade mark.
Paragraph 12 of the Rules grants the Panel the discretionary authority to request further statements or documents from either party. However, prior panels deciding under the Policy have held that such discretionary authority to request additional statements or evidence “is not intended to supplement pleadings that are substantially lacking in information and argument”. See Thuisbezorgd.nl B.V. and Takeaway.com B.V. v. WhoisGuard Protected, WhoisGuard, Inc. / MK, M. Khelifi, supra, (where the panel denied the transfer of the disputed domain name based on lack of argumentation and evidence). Paragraphs 10(a) and 10(c) of the Rules, however, provide that the Panel “shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules” and “shall ensure that the administrative proceeding takes place with due expedition”, respectively.
Based on the foregoing provisions, and taking into account the sensitive nature of this case, as the Domain Name was pointing to a website providing banking-related services (inviting Internet users to provide personal and financial information), the Panel has considered appropriate to conduct independent research on the Internet in order to reach the right decision. See paragraph 4.5 of the WIPO Overview 2.0. A brief search on the Internet reveals that although the Complainant seems to operate only in the states of Pennsylvania and Ohio, most if not all references to “dollar bank” and “dollar bank loan center” on Google's search engine refer to the Complainant. Furthermore, the Complainant appears to operate the websites “www.dollarbank.com” and “www.dollarbankloancenter.com” (the domain name is registered to the Complainant and its creation date is 1999). Accordingly, it would have been appropriate for the Respondent to provide an explanation for his choice of the Domain Name. The Respondent had an opportunity to do so but chose not to. As a result, the Panel finds that it is reasonable to infer that it is more likely than not that the Respondent had knowledge of the Complainant at the time of registration and registered the Domain Name in bad faith with the intention of taking advantage of the Complainant’s rights.
Given the Respondent’s likely awareness of the Complainant’s rights, the Panel finds that the Respondent’s use of the Domain Name for a website purportedly providing similar or identical services as those provided by the Complainant, most likely seeking to obtain sensitive financial information from the Complainant’s customers, is a strong indication that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website, in accordance with paragraph 4(b) of the Policy. See National Westminster Bank plc v. Adeolu Ajai, WIPO Case No. D2014-1826. The fact that the website is no longer resolving does not preclude a finding of bad faith use.
The Panel is also of the view that the fact that the Respondent registered the Domain Name using a privacy protection service combined with his failure to take part in the present proceedings are additional strong indications in support of the Respondent’s bad faith.
The Panel therefore finds that the Domain Name was registered and is being used in bad faith.
Accordingly, the Complainant has satisfied paragraph 4(a)(iii) of the Policy.


7. Decision



For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant.

David Taylor

Sole Panelist



Date: November 20, 2015



Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©azrefs.org 2016
rəhbərliyinə müraciət

    Ana səhifə