Amcore Financial, Inc. v. PabloPalermao
Claim Number: FA0709001082151
Complainant is Amcore Financial, Inc. (“Complainant”), represented by Kourtney Mulcahy, 222 North LaSalle Street, Ste. 300, Chicago, IL 60601. Respondent is Pablo Palermao (“Respondent”), Avenida Canaval y Moreyra 380, Piso 19, San Isidro, 000027, PE.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amcorefinancial.com>, registered with Moniker Online Services, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On October 8, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 29, 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@amcorefinancial.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <amcorefinancial.com> domain name is confusingly similar to Complainant’s AMCORE mark.
2. Respondent does not have any rights or legitimate interests in the <amcorefinancial.com> domain name.
3. Respondent registered and used the <amcorefinancial.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Amcore Financial, Inc., was incorporated in the
state of
Respondent registered the <amcorefinancial.com>
domain name on
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 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.
Complainant asserts rights in the AMCORE mark through
registration of the mark with the USPTO.
The Panel finds that Complainant’s registration of the AMCORE mark with
the USPTO satisfactorily establishes rights in the mark pursuant to Policy ¶
4(a)(i). See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum
Respondent’s <amcorefinancial.com> domain name contains Complainant’s AMCORE mark in its entirety and adds the generic term “financial,” which obviously relates to Complainant’s business, as well as the generic top-level domain (“gTLD”) “.com.” The Panel finds that the mere addition of a gTLD and a generic term to an otherwise identical mark fails to sufficiently distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business).
The requirements of Policy ¶ 4(a)(i) have been satisfactorily met.
In instances where Complainant has made a prima facie case in support of its
allegations, the burden shifts to Respondent to set forth concrete evidence
indicating that it has rights or legitimate interests in accordance with Policy
¶ 4(a)(ii). See SEMCO Prods., LLC v. dmg world media (
Respondent is utilizing its disputed domain name by operating a web page that offers links to Complainant’s competitors. The Panel finds that such use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Charles Letts & Co. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s use of a domain name that was confusingly similar to the complainant’s mark to display links to the complainant’s competitors did not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The registrant of the <amcorefinancial.com>
domain name is “Moniker Privacy Services.”
Respondent has failed to proffer a Response in this proceeding. Consequently, the Panel finds that Respondent
is not commonly known by the disputed domain name pursuant to Policy ¶
4(c)(ii). See Instron Corp. v. Kaner,
FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent is not
commonly known by the <shoredurometer.com> or <shoredurometers.com>
domain names where the WHOIS information indicates the registrant of the domain
names as “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip’t,” and no
other evidence suggests that the respondent is commonly known by the domain
names); see also Wells Fargo & Co. v. Onlyne Corp. Services11,
Inc., FA 198969 (Nat. Arb. Forum
The requirements of Policy ¶
4(a)(ii) have been satisfactorily met.
Respondent’s <amcorefinancial.com>
domain name resolves to a website featuring links to competing websites. The Panel finds that such use evinces a
disruption of Complainant’s business and illustrates registration and use in
bad faith pursuant to Policy ¶ 4(b)(iii).
See Tesco Pers. Fin. Ltd. v.
Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that
the use of a confusingly similar domain name to attract Internet users to a
website containing commercial links to the websites of the complainant’s
competitors represented bad faith registration and use under Policy ¶
4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad
faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent
used the disputed domain name to operate a commercial search engine with links
to the complainant’s competitors).
Purveyors of search engine
websites generally receive financial compensation through the procurement of
click-through advertising fees. Here,
Respondent operates a commercial web page in association with its <amcorefinancial.com>
domain name that offers links to competitors’ websites. Complainant asserts that Respondent’s use is
likely to create confusion among unwary Internet users as to the source and
affiliation of the material on Respondent’s web page and the respective links
located on Respondent’s web page. The
Panel finds that Respondent’s use evinces registration and use in bad faith
pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v.
Bond, FA 680624 (Nat. Arb. Forum June 2, 2006)
(finding bad faith registration and use under Policy ¶ 4(b)(iv) where the
respondent was diverting Internet users searching for the complainant to its
own website and likely profiting from click-through fees); see also Asbury Auto. Group,
Inc. v.
The requirements of Policy ¶ 4(a)(iii) have been satisfactorily met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amcorefinancial.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 15, 2007
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