Bank of America Corporation v. Nick Savedes
Claim Number: FA0904001255821
PARTIES
Complainant is Bank of America Corporation (“Complainant”), represented by Melissa G. Ferrario, of Womble Carlyle Sandridge & Rice, PLLC,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bankofamericamort.com>,
<bankofamericamtg.com>, <bofafinancial.com>, <bofafinancialmortgage.com>, <bofamortgag.com>, and <bofamtg.com>, registered with Godaddy.com, Inc.
PANEL
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.
Mark McCormick as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 3, 2009; the National Arbitration Forum received a hard
copy of the Complaint on April 3, 2009.
On April 6, 2009, Godaddy.com, Inc. confirmed by e-mail to the National
Arbitration Forum that the <bankofamericamort.com>,
<bankofamericamtg.com>, <bofafinancial.com>, <bofafinancialmortgage.com>, <bofamortgag.com>, and <bofamtg.com> domain names are
registered with Godaddy.com, Inc. and that the Respondent is the current
registrant of the names. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, Inc.
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 April 15, 2009, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of May 5, 2009 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@bankofamericamort.com, postmaster@bankofamericamtg.com,
postmaster@bofafinancial.com, postmaster@bofafinancialmortgage.com, postmaster@bofamortgag.com,
and postmaster@bofamtg.com by e-mail.
A Response was received in electronic copy on May 5, 2009 prior to the Response
deadline; however no hard copy was received. The National Arbitration Forum
therefore does not consider the Response to be in compliance with ICANN Rule 5.
On May 11, 2009, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Mark McCormick as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant asserts its right in the BANK OF AMERICA and B OF A marks through its registration of the marks with the United States Patent and Trademark Office. Complainant contends that the <bankofamericamort.com>, <bankofamericamtg.com>, <bofafinancial.com>, <bofafinancialmortgage.com>, <bofamortgag.com>, and <bofamtg.com> domain names are confusingly similar to its mark.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain names, that Respondent is an individual who is not commonly known by any of them, and that Respondent told counsel for Complainant he had purchased the domain names in order to sell them to Complainant.
Complainant also asserts that Respondent has registered and used the disputed domain names in bad faith, pointing to Respondent’s statement that he purchased the domain names for the purpose of selling them to Complainant, presumably at a profit. Complainant also contends Respondent intentionally created a likelihood of confusion by intending to use the disputed domain names to divert Internet users to Respondent’s website in order to market his own competing mortgage services to them.
B. Respondent
Respondent does not respond to Complainant’s specific allegations
except to state that he did not intend “to fool or divert” individuals to his
website. He also states, “If Bank of
FINDINGS
Complainant at all material times has had rights in its BANK OF AMERICA and B OF A marks through trademark registrations. Respondent’s variations in his use of the marks in the disputed domain names do not make the domain names materially distinct from Complainant’s marks and their description of Complainant’s financial services. Respondent is an individual named Nick Savedes who has no relationship to Complainant. The disputed domain names resolve to an <academymortgageinc.com> domain name through which Respondent offers competing financial services. Respondent purchased the domain names and used them to divert Internet users to his website for commercial gain and also planned, if challenged by Complainant, to bargain with Complainant to sell the disputed domain names to Complainant for a profit.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
A preliminary issue exists concerning whether
Respondent’s untimely Response should be considered. Even though the Response was submitted only
in electronic format before the deadline, the Panel has determined to consider
it in view of the technical nature of the breach of ICANN Rule 5 and the need
to resolve the case after consideration of the positions of both parties. See J.W.
Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct.
17, 2003).
Complainant’s
trademark registrations establish Complainant’s rights in its marks.
Complainant has shown that Respondent, who is an individual, is not commonly known by the disputed domain names, has no affiliation with Complainant, and has no rights or legitimate interests in the disputed domain names. See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003). Moreover, Respondent’s use of the domain names to divert Internet users to his own competing website for commercial gain is not use in a bona fide offering of goods or services. See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002). Finally, Respondent’s request that Complainant make an offer to purchase the domain names from Respondent shows Respondent has no rights or legitimate interests in them. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007). For each of these reasons, Complainant has demonstrated that Respondent has no rights or legitimate interests in the disputed domain names within the meaning of Policy ¶ 4(a)(ii).
Respondent has admitted that he purchased the
disputed domain names for the primary purpose of attempting to sell them to
Complainant. Such registration and use
is bad faith. See
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bankofamericamort.com>, <bankofamericamtg.com>, <bofafinancial.com>, <bofafinancialmortgage.com>, <bofamortgag.com>, and <bofamtg.com> domain names be TRANSFERRED
from Respondent to Complainant.
Mark McCormick, Panelist
Dated: May 22, 2009
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