Bank of America Corporation v. Cynthia Lynn
Claim Number: FA0808001222119
Complainant is Bank of America Corporation (“Complainant”), represented by Melissa
G. Ferrario, of Womble Carlyle Sandridge & Rice, PLLC,
REGISTRAR
The domain name at issue is <bankofamericahotel.com>, registered with Domain Discover.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On September 3, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 23, 2008 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@bankofamericahotel.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 <bankofamericahotel.com> domain name is confusingly similar to Complainant’s BANK OF AMERICA mark.
2. Respondent does not have any rights or legitimate interests in the <bankofamericahotel.com> domain name.
3. Respondent registered and used the <bankofamericahotel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bank of America Corporation, is the second-largest banking company in the world, and supports clients across 150 countries. Complainant and its predecessors have used the BANK OF AMERICA mark (Reg. No. 853,860 issued July 30, 1968 by the United States Patent and Trademark Office (“USPTO”)) since 1928. Complainant also owns and operates the <bankofamerica.com> domain name.
Respondent registered the disputed <bankofamericahotel.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 has established
sufficient rights in the BANK OF AMERICA mark through registration with the
USPTO pursuant to Policy ¶ 4(a)(i). See Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Respondent’s <bankofamericahotel.com> domain name
includes Complainant’s entire BANK OF AMERICA mark, and adds the generic word
“hotel” and the generic top-level domain “.com.” As Complainant’s mark easily remains the most
dominant element of the disputed domain name, the Panel finds that none of the
additions create any meaningful distinction under Policy ¶ 4(a)(i). See Trip Network
Inc. v. Alviera, FA 914943 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant has set forth a prima facie case supporting its allegations, Respondent carries the burden to show that it does have rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also 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).
Based on the evidence within the record, there is no
indication that Respondent is known by the disputed domain name. The WHOIS domain name registration
information lists the registrant of record as “Cynthia
Lynn.” As such, the Panel finds
that Respondent lacks rights and legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum
The disputed domain name resolves to an unrelated website
for “The Inn at Peralynna Manor,” which is allegedly a hotel located in
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s disputed domain name resolves to a website that
promotes an unrelated third-party hotel.
The Panel finds that the use of a confusingly similar disputed domain
name in such a commercial manner was designed to trade off the goodwill of
Complainant’s mark, which constitutes bad faith registration and use under
Policy ¶ 4(b)(iv).
See 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); see also Entrepreneur
Media, Inc. v. Smith, 279 F.3d 1135,
1148 (9th Cir. 2002) ("While an
intent to confuse consumers is not required for a finding of trademark
infringement, intent to deceive is strong evidence of a likelihood of
confusion.").
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bankofamericahotel.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: October 14, 2008
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