National Westminster Bank plc v. Olisa madu
Claim Number: FA0905001263681
Complainant is National
Westminster Bank plc (“Complainant”), represented by James A. Thomas, of Troutman Sanders LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <natwestuk.info>, registered with GoDaddy.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 20, 2009.
On May 19, 2009, GoDaddy confirmed by e-mail to the National Arbitration Forum that the <natwestuk.info> domain name is registered with GoDaddy and that Respondent is the current registrant of the name. GoDaddy has verified that Respondent is bound by the GoDaddy 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 May 21, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 10, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 12, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <natwestuk.info> domain name is confusingly similar to Complainant’s NATWEST mark.
2. Respondent does not have any rights or legitimate interests in the <natwestuk.info> domain name.
3. Respondent registered and used the <natwestuk.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, National Westminster Bank plc, is a leading
financial institution based in the
Respondent registered the <natwestuk.info> domain name on March 16, 2009. The disputed domain name resolves to Complainant’s online banking website at the <natwest.co.uk> domain name.
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.
The Panel finds that Complainant’s registrations of its NATWEST mark with the USPTO, the OHIM, and the UKIPO each confer sufficient rights upon Complainant in the mark for the purposes of Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Royal Bank of Scot. Group plc & Nat. Westminster Bank plc v. Soloviov, FA 787983 (Nat. Arb. Forum Nov. 3, 2006) (“Complainant’s trademark registrations for the NATWEST mark with the United Kingdom Patent Office . . . establish Complainant’s rights in the mark pursuant to Policy ¶4(a)(i).”).
The disputed <natwestuk.info> domain name
contains the NATWEST mark with the following changes: (1) the geographic
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 this assertion constitutes a sufficient prima facie case supporting its allegations, Respondent receives the burden of demonstrating its rights or legitimate interests under Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); 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).
There is no evidence within the record for the Panel to conclude that Respondent is or ever was known by the disputed domain name. Even the registrant of record in the WHOIS information is listed as “Olisa madu,” which bears no similarity to the disputed domain name. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).
The disputed domain name merely resolves to Complainant’s website. The Panel presumes that Respondent is diverting Internet users seeking Complainant to Complainant’s website through this disputed domain name for the purposes of commercial referral fees. Therefore, the Panel finds that Respondent has not created a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name); see also eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The disputed domain name merely resolves to Complainant’s
own website. As discussed above, the Panel
presumes Respondent engaged in this activity solely for the receipt of commercial
referral fees. Since Respondent has not
come forth with any contrary assertions, the Panel finds that Respondent
intentionally created a likelihood of confusion as to Complainant’s affiliation
with the disputed domain name for commercial gain, and that Respondent
therefore has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See Sports
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 <natwestuk.info> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 24, 2009
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