National Westminster Bank plc v. Westbrom c/o Natalie
Claim Number: FA0706001008190
Complainant is National Westminster Bank plc (“Complainant”), represented by James
A. Thomas, of Parker, Poe, Adams & Bernstein L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <nat-west-nw.com>, registered with PublicDomainRegistry.com.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 13, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 15, 2007.
On June 15, 2007, PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <nat-west-nw.com> domain name is registered with PublicDomainRegistry.com and that Respondent is the current registrant of the name. PublicDomainRegistry.com has verified that Respondent is bound by the PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 18, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 9, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@nat-west-nw.com by e-mail.
Having received no proper or timely response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On June 19, 2007,
Respondent sent the Forum the following email:
Please i do not have any money to institute any proceedings. If the person does not want me to use the domain any more he should settle me out of court with $1,500
This is not a proper response addressing the allegations of the Complaint; therefore, the Panel will treat this matter as a default.
On July 13, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <nat-west-nw.com> domain name is confusingly similar to Complainant’s NATWEST mark.
2. Respondent does not have any rights or legitimate interests in the <nat-west-nw.com> domain name.
3. Respondent registered and used the <nat-west-nw.com> domain name in bad faith.
Respondent failed to submit a proper Response in this proceeding.
Complainant, National Westminster Bank plc, is a full-range
financial service provider based in the
Respondent registered the <nat-west-nw.com> domain name on December 12, 2006. The <nat-west-nw.com> domain name previously resolved to a website mimicking Complainant’s <natwest.com> site in an attempt to solicit sensitive personal information from unwary Internet users, including account numbers and PIN codes. The disputed domain name currently does not resolve to an active website.
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."
In view of Respondent's failure to submit a proper response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
The Panel finds Complainant’s registration of its NATWEST
mark with the UKIPO sufficiently establishes its rights in the mark pursuant to
Policy ¶ 4(a)(i). See Royal Bank of
Scot. Group plc v. TRB, FA 622345 (Nat. Arb. Forum Feb. 22, 2006) (“The
Panel accepts Complainant’s registration of the THE ROYAL BANK OF SCOTLAND mark
with the United Kingdom Patent Office as evidence of Complainant’s rights in
the mark pursuant to Policy ¶ 4(a)(i).”); see also Thermo Electron Corp. v.
Xu, FA 713851 (Nat.
Arb. Forum
Respondent’s <nat-west-nw.com> domain name bears a confusing similarity to Complainant’s NATWEST mark under Policy ¶ 4(a)(i). Respondent’s inclusion of several hyphens and the generic top-level domain “.com” alongside Complainant’s NATWEST mark does not sufficiently distinguish Respondent’s disputed domain name from Complainant’s registered mark. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also InfoSpace.com, Inc. v. Ofer, D2000-0075 (WIPO Apr. 27, 2000) (finding that “[t]he domain name ‘info-space.com’ is identical to Complainant’s INFOSPACE trademark. The addition of a hyphen and .com are not distinguishing features”). Likewise, the addition of the letters “nw” does not adequately set apart Respondent’s <nat-west-nw.com> domain name from Complainant’s NATWEST mark, particularly since this element of the domain name appears to be an abbreviation of the NATWEST mark itself. See Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or confusingly similar to the complainant’s federally registered service mark, KELSON); see also Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated). As a result, the Panel determines Respondent’s <nat-west-nw.com> domain name is confusingly similar to Complainant’s NATWEST mark.
The Panel, therefore, concludes Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first set forth a prima facie case alleging Respondent’s lack of rights or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii) before the
burden shifts to Respondent to supply evidence in support of a legitimate stake
in the domain name at issue. See ALPITOUR
S.p.A. v. Albloushi, FA 888651
(Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires that
the complainant must show that the respondent has no rights to or legitimate
interests in the subject domain name and that once the complainant makes this
showing, the burden of production shifts to the respondent to rebut the
complainant’s allegations); see also Hanna-Barbera Prods., Inc. v.
Entm’t Commentaries,
FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must
first make a prima facie case that the respondent lacks rights and
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before
the burden shifts to the respondent to show that it does have rights or
legitimate interests in a domain name).
Finding the Complainant has satisfied its initial burden, the Panel now
considers whether Respondent has proffered any evidence demonstrating rights or
legitimate interests in the <nat-west-nw.com>
domain name.
Respondent has failed to respond to the allegations of the Complaint. Accordingly, the Panel may infer Respondent holds no rights or legitimate interests in the <nat-west-nw.com> domain name. See Branco do Brasil S.A. v. Sync Tech., D2000-0727 (WIPO Sept. 1, 2000) (“By its default, Respondent has not contested the allegation . . . that the Respondent lacks any rights or legitimate interests in the domain name. The Panel thus assumes that there was no other reason for the Respondent having registered <bancodobrasil.com> but the presumably known existence of the Complainant’s mark BANCO DO BRASIL”); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed). However, the Panel will now consider whether evidence in the record suggests Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Respondent has put forth no evidence and nothing in the record suggests Respondent is commonly known by the <nat-west-nw.com> domain name or that the domain name is being used in connection with a bona fide offering of goods or services, factors to be considered when evaluating a respondent’s potential rights and legitimate interests in a disputed domain name under Policy ¶ 4(c). There is no evidence Complainant has authorized Respondent to register domain names incorporating Complainant’s NATWEST mark or that Respondent is in some way affiliated or associated with Complainant. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). Further, Respondent’s WHOIS information fails to lend any support to the idea that Respondent is commonly known by the <nat-west-nw.com> domain name. See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”). Based on the foregoing, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Evidence in the record suggests that, as recent as April 2007, Respondent maintained the <nat-west-nw.com> domain name to operate a website deceptively similar to Complainant’s <natwest.com> online banking site in an attempt to collect personal information, including account numbers and PIN codes, from unwary Internet users seeking Complainant. The Panel finds credence in Complainant’s allegations that Respondent’s use of the <nat-west-nw.com> to defraud Internet users of their personal and financial information, presumably for Respondent’s own benefit, does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair pursuant to Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)).
Additionally, Respondent’s <nat-west-nw.com> domain name presently does not resolve to an active website. The lack of any demonstrable preparations to use the <nat-west-nw.com> domain name in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use is further evidence to the Panel that Respondent holds no rights or legitimate interests in the <nat-west-nw.com> domain name. See Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the respondent has advanced no basis on which the panel could conclude that it has a right or legitimate interest in the domain names, and no commercial use of the domain names has been established).
Accordingly, the Panel concludes Complainant has satisfied Policy ¶ 4(a)(ii).
The circumstances outlined in Policy ¶ 4(b) are not intended to be exhaustive of the ways Respondent’s registration and use of the disputed domain name can evidence bad faith. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”). Respondent’s registration and use of the <nat-west-nw.com> domain name to establish a sham website soliciting highly sensitive personal and financial information is evidence of bad faith use and registration in the spirit of Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients). Similarly, the Panel infers that the collection of such sensitive information likely to occur as the result of a visitor’s confusion as to Respondent’s relationship with Complainant through the inclusion of Complainant’s NATWEST mark and the deceptive replication of Complainant’s <natwest.com> site is for Respondent’s own commercial benefit, further evidencing bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Likewise, the fact that the disputed domain name previously resolved to a website nearly identical to Complainant’s <natwest.com> site permits the Panel to infer Respondent was keenly aware of Complainant’s NATWEST mark and business operations. Respondent’s site also included a feature displaying the copyright symbol (©) next to Complainant’s NATWEST mark, tending to suggest Respondent was also aware of Complainant’s registration of the mark. See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Such conduct by Respondent indicates to the Panel that Respondent exercised bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Moreover, Respondent’s failure to currently maintain an active use of the disputed domain name further attests to Respondent’s bad faith registration and use of the <nat-west-nw.com> domain name under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s non-use of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose).
Furthermore, Respondent’s request
for $1,500 for the domain name is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(i). See Am. Online, Inc. v. Avrasya Yayincilik
Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad
faith where Respondent offered domain names for sale).
The Panel concludes Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nat-west-nw.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 25, 2007
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