Atlantic Trust Group, Inc. v. Atlantic Trust
Claim Number: FA0906001268003
Complainant is Atlantic
Trust Group, Inc. (“Complainant”), represented by Benjamin F. Sidbury, of Alston & Bird, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <atbankplc.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On July 2, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 22, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <atbankplc.com> domain name is confusingly similar to Complainant’s ATLANTIC TRUST mark.
2. Respondent does not have any rights or legitimate interests in the <atbankplc.com> domain name.
3. Respondent registered and used the <atbankplc.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Atlantic Trust Group, Inc., is a financial
services company that provides investment and advisory services under the trade-name
“Atlantic Trust Private Wealth
Management.” Since as early as
2002, Complainant has offered investment management services under its ATLANTIC
TRUST mark, which is registered with the United States Patent and Trademark
Office (“USPTO”) (Reg. No. 2,748,299
registered the <atbankplc.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.
The Panel finds that Complainant has established rights in
its ATLANTIC TRUST mark for the purposes of Policy ¶ 4(a)(i) through the
registration of its mark with the USPTO.
See Reebok Int’l Ltd. v.
Complainant contends that Respondent’s <atbankplc.com>
domain name is confusingly similar to Complainant’s ATLANTIC TRUST mark under
Policy ¶ 4(a)(i). The disputed domain
name incorporates the abbreviation of Complainant’s ATLANTIC TRUST mark, “at,”
with the addition of the descriptive words “bank“ and “plc,” and the affixation
of the generic top-level domain “.com.”
The term “bank” is descriptive of Complainant’s business because
Complainant is in the financial industry, and the letters “plc” likely allude
to the well-known form-of-business designation acronym for “public limited
company.” The Panel finds that these
alterations fail to alleviate the confusing similarity between Complainant’s
ATLANTIC TRUST mark and Respondent’s <atbankplc.com> domain name
under Policy ¶ 4(a)(i). Moreover,
Respondent’s reference to itself as “Atlantic Trust Bank Wealth Management
Group” on the disputed domain name’s resolving website adds to the confusing
similarity. Thus, the Panel finds that
Respondent’s <atbankplc.com> domain name is confusingly similar to
Complainant’s ATLANTIC TRUST mark pursuant to Policy ¶ 4(a)(i). See
Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or legitimate interests in the <atbankplc.com> domain name. Once Complainant makes a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent 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”). The Panel finds that Complainant has presented a sufficient prima facie case. Respondent’s failure to answer the Complaint raises a presumption that Respondent has no rights or legitimate interests in the disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Respondent’s <atbankplc.com> domain name domain
name resolves to a website that mimics Complainant’s financial services
website. The Panel finds that Respondent
seeks to pass itself off as Complainant, and presumably profit from this
fraudulent diversion of Internet users. Respondent’s
scheme to pass itself off as Complainant is perpetuated by Respondent’s
repeated references to itself as “Atlantic Trust Bank Wealth Management Group” on
the resolving website. The Panel finds
that Respondent’s use of the disputed domain name cannot be found as 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).
According to the pertinent WHOIS information, Respondent is operating the disputed domain name as “Atlantic Trust.” Although there appears to be a relationship between the WHOIS information and the disputed domain name, this is insufficient, without more, to demonstrate that Respondent is commonly known by the <atbankplc.com> domain name under Policy ¶ 4(c)(ii). Since Respondent failed to contest the allegations against it, the Panel concludes that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”); see also Starwood Hotels & Resorts Worldwide, Inc. v. SRW Hotels Worldwide, FA 214416 (Nat. Arb. Forum Jan. 12, 2004) (“Though Respondent’s WHOIS information lists Respondent as ‘SRW Hotels Worldwide,’ part of which constitutes the disputed domain name, there is no evidence before the Panel that Respondent was actually commonly known by that name.”).
This fraudulent diversion of Internet users for commercial gain is also advanced by the deceptive use of the resolving website to trick Internet users into divulging their personal and private banking information to Respondent, believing in fact that they are communicating with Complainant. This is a textbook definition of “phishing,” and provides sufficient additional evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking the complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
Complainant has satisfied Policy ¶ 4(a)(ii).
The similarity between Complainant’s commercial website and
the website to which the disputed domain name resolves demonstrates that
Respondent uses the <atbankplc.com> domain to attract, for
commercial gain, Internet users seeking Complainant’s services by passing
itself off as Complainant. In this way,
Respondent is taking advantage of the confusing similarity between the disputed
domain name and Complainant’s mark to lure Internet users to its website in
order to profit from the goodwill associated with Complainant’s mark. Therefore, the Panel finds that Respondent
has registered and is using the disputed domain name in bad faith pursuant to
Policy ¶ 4(b)(iv). See H-D Michigan,
Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding
that the disputed domain name was registered and used in bad faith pursuant to
Policy ¶ 4(b)(iv) through the respondent’s registration and use of the
infringing domain name to intentionally attempt to attract Internet users to
its fraudulent website by using the complainant’s famous marks and likeness); see
also Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum
Furthermore, the Panel finds that Respondent is engaging in a fraudulent “phishing” scheme by registering and using the <atbankplc.com> domain name to divert Internet users to a website that displays Complainant’s mark and trade-name mimicking Complainant’s own website, in order to induce such Internet users to reveal personal and financial information. Therefore, the Panel finds that Respondent’s attempts to fraudulently acquire such information constitute “phishing,” and provide evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use of a domain name where a respondent used a domain to redirect Internet users to a website that imitated a complainant’s website fraudulently to acquire personal information from that complainant’s clients); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates).
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 <atbankplc.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 10, 2009
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