national arbitration forum




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, North Carolina, USA.  Respondent is Cynthia Lynn (“Respondent”), Maryland.




The domain name at issue is <>, 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.


Bruce E. Meyerson as Panelist.




Complainant submitted a Complaint to the National Arbitration Forum electronically on August 26, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 28, 2008.


On August 28, 2008, Domain Discover confirmed by e-mail to the National Arbitration Forum that the <> domain name is registered with Domain Discover and that Respondent is the current registrant of the name.  Domain Discover has verified that Respondent is bound by the Domain Discover 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 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 by e-mail.


Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.


On September 30, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <> domain name is confusingly similar to Complainant’s BANK OF AMERICA mark.


2.      Respondent does not have any rights or legitimate interests in the <> domain name.


3.      Respondent registered and used the <> 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 <> domain name.


Respondent registered the disputed <> domain name on January 17, 2008.  The disputed domain name resolves to an unrelated website for “The Inn at Peralynna Manor,” which is allegedly a hotel located in Columbia, Maryland. 




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.


Identical and/or Confusingly Similar


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 Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).


Respondent’s <> 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 Mar. 27, 2007) (concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Am. Express Co. v., FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)).


The Panel finds that Policy ¶ 4(a)(i) has been satisfied.


Rights or Legitimate Interests


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., 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 Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also America 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 [<>] domain name.”).


The disputed domain name resolves to an unrelated website for “The Inn at Peralynna Manor,” which is allegedly a hotel located in Columbia, Maryland.  The Panel infers a monetary benefit from this redirection due to this alleged commercial activity.  Therefore, the Panel finds that Respondent has not created a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 Vanderbilt Univ. v. U Inc., FA 893000 (Nat. Arb. Forum Feb. 19, 2007) (holding that the respondent did not have rights or legitimate interests in a domain name where it was redirecting Internet users to its own website promoting the respondent’s books unrelated to the complainant).


The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.


Registration and Use in Bad Faith


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., 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 <> domain name be TRANSFERRED from Respondent to Complainant.





Bruce E. Meyerson, Panelist

Dated:  October 14, 2008



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