Arvest Bank Corporation v. Nzube Frank / digitalminer
Claim Number: FA2002001883734
Complainant is Arvest Bank Corporation (“Complainant”), represented by Chase C. Webb of McAfee & Taft, Oklahoma, USA. Respondent is Nzube Frank / digitalminer (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arvest-wealth.com>, registered with NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 18, 2020; the Forum received payment on February 18, 2020.
On February 19, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <arvest-wealth.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@arvest-wealth.com. Also on February 24, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 18, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant submits that the disputed domain name <arvest-wealth.com> is identical or confusingly similar to Complainant’s ARVEST service mark and is therefore likely to deceive consumers into believing that there is some association connection between the disputed domain name and Complainant. Complainant alleges that the dominant portion of the disputed domain name is the ARVEST mark, and that the addition of the term ”wealth” is merely descriptive of the services which are offered by Respondent. See President Casinos, Inc. v. Holger Aulenbach d/b/a DiamantClub Ltd. FA 0405000271202 (Forum July 13, 2004) (finding that the domain names <presidentpoker.com>, <president-poker.com>, <presidentsports.com>, and <presidentsportsbooks.com> confusingly similar to the trademark PRESIDENT CASINOS based upon, inter alia, “the fact that adding generic words, i.e. poker, [sports, and sport books,] cannot divert the fact that the predominant, well-known, recognized word, President, will be what the web surfers will be searching”).
Complainant submits that this allegation is buttressed by the fact that the website operated by Respondent to which the disputed domain name resolved, purported to offer identical competing services to Complainant which makes the likelihood of confusion even greater.
Complainant submits that Respondent has no rights legitimate interests in the disputed domain name. Complaint alleges that respondent not commonly known by the domain name as evidenced by the WhoIs history records. Complainant adds that it is never signed, granted, licensed, sold, transferred or in any way authorised Respondent to register or use the ARVEST mark in any manner. See Six Continents Hotels, Inc. v. Patrick Ory, (WIPO Case No. D2003-0098) (“There is no evidence of any commercial relationship between the Complainant and the Respondent which would entitle the Respondent to the mark. Consequently, the panel concludes that the Respondent has no rights or legitimate interests in the Domain Name given there exists no relationship between the Complainant and the Respondent ever give rise to any license, permission or authorization by which the Respondent could own or use the Domain Name.”)
Complainant alleges that the disputed domain name was registered and has been used in bad faith with the intention of attracting Internet users for commercial gain by trading off the goodwill associated with Complainant’s service mark and attempting to profit from the Internet users’ confusion.
Complainant submits that previous panels have found the use of a confusingly similar domain name that resolves to a commercial website with competing services is enough to prove bad faith under Policy ¶ 4(b)(iv). See Investools Inc. v Dana Jedd, FA 0706001002813 (Forum July 17, 2007) (citing MathForum.com, LLC V. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to house a commercial website that offered similar services offered by the complainant under its mark).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the ARVEST service mark which it uses in its banking and financing business and for which it holds the following United States service mark registrations:
· United States registered service mark ARVEST registration number 2,616,281, registered on September 10, 2002 for services in international class 36;
· United States registered service mark ARVEST FLEX REWARDS, registration number 5,042,117 registered on September 13, 2016 for services in international classes 35 and 36;
· United States registered service mark ARVEST, registration number 5,438,075, registered on April 3, 2018 in international class 36.
The registrant avails itself to a privacy service and now resolves to a holding page hosted by the Registrar. In response to a complaint from Complainant alleging abuse and fraudulent use of the disputed domain name, access to the disputed domain name was removed by the Registrar on November 4, 2019. Prior to that date the disputed domain name resolved to a website that appeared to offer financial services.
There is no information available about Respondent except for that which is provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar to the Forum in response to the request for verification of the details of the registration of the disputed domain name in the course of this proceeding.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has adduced uncontested evidence that it has rights in the ARVEST mark acquired through its ownership of the above-listed United States registered service marks and use of the mark in its banking and finance business.
The disputed domain name consists of Complainant’s ARVEST mark in its entirety in combination with the word” wealth”, a hyphen and the gTLD <.com> extension.
Complainant’s service mark is the initial, dominant and only distinctive element in the disputed the mining. The word “wealth” in context is a descriptive term frequently used in relation to banking and wealth management services. The hyphen has a no significance in the context. For the purposes of comparison, the gTLD <.com> extension may be ignored in the circumstances of this Complaint because a domain extension, is recognized as a technical necessity for a domain name and serves no other purpose or meaning in the context.
This Panel finds that the disputed domain name is confusingly similar to the ARVEST mark in which Complainant has rights. Complainant has therefore succeeded in establishing the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights legitimate interests in the disputed domain name alleging that Respondent not commonly known by the domain name as evidenced by the WhoIs history records; that Complainant never signed, granted, licensed, sold, transferred or in any way authorized Respondent to register or use the ARVEST mark in any manner; and Respondent is not using the disputed domain name for any bona fide, noncommercial or other legitimate purpose.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any response to the Complaint and so has not discharged the burden.
In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has made an uncontested allegation that the disputed domain name was registered and has been used in bad faith with the intention of attracting Internet users for commercial gain by trading off the goodwill associated with Complainant’s service mark and attempting to profit from the Internet users’ confusion.
On the evidence adduced, on the balance of probabilities the disputed domain name was registered in bad faith with Complainant’s name and mark in mind with the intention of taking predatory advantage of Complainant’s reputation and goodwill. The disputed domain name was registered on September 19, 2019, long after the date of Complainant’s earliest service mark registration on September 10, 2002
The evidence shows that Respondent has used the disputed domain name to offer financial services before Respondent was denied access to the disputed domain name by the Registrar in response to Complainant’s complaint alleging abuse and fraud. The disputed domain name has since resolved to an inactive parking page.
In the absence of any Response or other communication from Respondent, this Panel finds therefore that on the balance of probabilities, Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship ,affiliation, or endorsement of his web site and the services Respondent purported to offer on his website and is therefore using the disputed domain name in bad faith.
This Panel finds therefore that the disputed domain name was registered and is being used in bad faith. As Complainant has established the third and final element of the test in a Policy ¶ 4(a)(iii) it is entitled to the reliefs sought in the Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <arvest-wealth.com> domain name be TRANSFERRED from Respondent to Complainant.
_______________________________
James Bridgeman SC
Panelist
Dated: March 19, 2020
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