Citizens Financial Group, Inc. v. Forsyte Corporation
Claim Number: FA0709001086584
Complainant is Citizens Financial Group, Inc. (“Complainant”), represented by James
A. Thomas of Parker, Poe, Adams & Bernstein L.L.P.,
Post Office Box 389, Raleigh, NC, 27602.
Respondent is Forsyte Corporation (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <citizesnbank.com>, registered with Adoptadomain.com.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically September 28, 2007; the National Arbitration Forum received a hard copy of the Complaint October 1, 2007.
On October 2, 2007, Adoptadomain.com confirmed by e-mail to the National Arbitration Forum that the <citizesnbank.com> domain name is registered with Adoptadomain.com and that Respondent is the current registrant of the name. Adoptadomain.com verified that Respondent is bound by the Adoptadomain.com registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 3, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 23, 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@citizesnbank.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 29, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <citizesnbank.com>, is confusingly similar to Complainant’s CITIZENS BANK mark.
2. Respondent has no rights to or legitimate interests in the <citizesnbank.com> domain name.
3. Respondent registered and used the <citizesnbank.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Citizens Financial Group, Inc.,
is a leading financial services provider with a longstanding role as a major
presence in the
Respondent registered the <citizesnbank.com> domain name June 3, 2006. The disputed domain name resolves to a website displaying commercial links to third-party websites, some of which offer products and services that seek to compete directly in Complainant’s area of commerce.
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 will draw such inferences as the Panel 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 Complainant to 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 CITIZENS BANK mark through registration of the mark with the USPTO. The Panel finds that Complainant’s registration of the mark establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003) (finding that the complainant’s registration of the MADD mark with the United States Patent and Trademark Office established the complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i)).
The disputed domain name that Respondent registered, <citizesnbank.com>, transposes the
letter “n” and the letter “s” in the word “citizens,” eliminates the space
between the two words of Complainant’s mark and adds the generic top-level
domain (“gTLD”) “.com.” The Panel finds
that the mere transposition of two letters in Complainant’s protected mark, combined
with the elimination of the space between the two words of Complainant’s mark
and the addition of a gTLD fail 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
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Where Complainant makes a prima facie case to support 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 (
The Panel finds that Complainant established a prima facie case for purposes of the Policy. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s disputed domain name resolves to a website that displays, inter alia, links to websites of those who would compete with Complainant. The Panel finds that such use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and that it is not 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)).
Review of Respondent’s WHOIS registration shows that the
registrant of the <citizesnbank.com>
domain name is “Forsyte Corporation.” This
information, combined with the lack of a Response from Respondent that
affirmatively challenges Complainant’s assertion that Respondent is not and has
never been, commonly known by the disputed domain name, the Panel finds that
Respondent is not commonly known by the disputed domain name pursuant to Policy
¶ 4(c)(ii). 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.”); see also Wells Fargo & Co. v. Onlyne
Corp. Services11, Inc., FA 198969 (Nat.
Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the
disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
Complainant avers that Respondent’s use of the disputed domain name amounts to typosquatting, a practice where a confusingly similar domain name is registered with hopes of attracting Internet traffic through commonly made typographical errors. The Panel finds that Respondent’s use amounts to typosquatting, which supports findings of a lack of rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
Complainant also alleges that Respondent is using the <citizesnbank.com> domain name to operate a website that displays links to competitive websites. The Panel finds that such use supports findings of 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 EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Under such circumstances, the Panel is permitted to presume that Respondent enjoys financial gain through the procurement of click-through advertising fees on the website associated with the <citizesnbank.com> domain name. Therefore, the Panel finds that Respondent’s use amounts to an attraction for commercial gain, thereby supporting findings of 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 AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
The Panel having found that Respondent’s use of the disputed domain name amounts to typosquatting, the Panel finds that Respondent’s deceptive use of the confusingly similar <citizesnbank.com> domain name is evidence of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that Complainant 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 <citizesnbank.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: November 12, 2007.
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