Cambridge Savings Bank v. nianxin lin c/o NIAN XIN LIN
Claim Number: FA0909001284852
Complainant is Cambridge
Savings Bank (“Complainant”), represented by Neil T. Smith, of Goodwin Procter Llp,
REGISTRAR
The domain name at issue is <cambridgesavings.mobi>, registered with Hichina Web Solutions Ltd.
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 September 16, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 18, 2009. The Complaint was submitted in both Chinese and English.
On
On September 29, 2009, a Chinese Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 19, 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@cambridgesavings.mobi 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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cambridgesavings.mobi> domain name is confusingly similar to Complainant’s CAMBRIDGE SAVINGS BANK mark.
2. Respondent does not have any rights or legitimate interests in the <cambridgesavings.mobi> domain name.
3. Respondent registered and used the <cambridgesavings.mobi> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cambridge Savings Bank, provides financial and
banking services. Complainant began
using its CAMBRIDGE SAVINGS BANK mark in 1868.
Complainant holds multiple trademark registrations with the United
States Patent and Trademark Office (“USPTO”) for its CAMBRIDGE SAVINGS BANK
mark (e.g., Reg. No. 2,472,254 issued
Respondent, nianxin lin c/o NIAN
XIN LIN, registered the <cambridgesavings.mobi> 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 registered its CAMBRIDGE SAVINGS BANK mark
with the USPTO (e.g., Reg. No. 2,472,254 issued
Complainant alleges Respondent’s <cambridgesavings.mobi>
domain name is confusingly similar
to Complainant’s CAMBRIDGE SAVINGS BANK mark. The disputed domain name deletes part of
Complainant’s mark by removing the term, “bank,” removing the space between
terms, and adds the generic top-level domain (“gTLD”) “.mobi.” Previous panels have found the deletions of a
word and a space between the terms fail to adequately distinguish the disputed
domain name from Complainant’s mark. See Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name
<asprey.com> is confusingly similar to the complainant’s ASPREY &
GARRARD and MISS ASPREY marks); see also Wellness Int’l Network,
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged Respondent lacks rights and legitimate interests in the <cambridgesavings.mobi> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Respondent has not used, and has not made a demonstrable
preparation to use, the disputed domain name.
The disputed domain name currently resolves to a blank website before
resolving to <gdd.cc>, which the Internet browser fails to find. The Panel finds this use of the confusingly
similar disputed domain name is not a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or legitimate noncommercial or fair use of the domain name under Policy ¶
4(c)(iii). See Thermo Electron Corp. v. Xu,
FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s
failure to use the disputed domain names demonstrates that the respondent is
not using the disputed domain names for a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also
Respondent has failed to offer evidence, and there is no evidence in the record, proving Respondent is commonly known by the <cambridgesavings.mobi> domain name. Complainant has not authorized Respondent to use the disputed domain name or Complainant’s CAMBRIDGE SAVINGS BANK mark. The WHOIS information lists Respondent as “nianxin lin c/o NIAN XIN LIN.” Therefore, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Therefore, the Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges Respondent’s use of the <cambridgesavings.mobi> domain name is a part of a pattern of bad
faith use and registration. Complainant has
provided at least 271 different domain names that contain other trademarks,
mainly different marks referring to other banks, which Respondent has registered
(e.g., <bankofarizona.mobi> and <banquet-france.mobi>). The Panel finds this constitutes a
pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See
Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding
that the respondent’s previous registration of domain names such as
<pillsbury.net>, <schlitz.net>, <biltmore.net> and
<honeywell.net> and subsequent registration of the disputed
<marlboro.com> domain name evidenced bad faith registration and use
pursuant to Policy ¶ 4(b)(ii)); see also
Armstrong Holdings, Inc. v.
Respondent has failed to
make an active use of the <cambridgesavings.mobi> domain name.
The disputed domain name resolves to a blank page which eventually
resolves to <gdd.cc>, which the Internet browser fails to
find. Respondent’s failure to actively
use the disputed domain name constitutes bad faith registration and use under
Policy ¶ 4(a)(iii).
See Pirelli
& C. S.p.A. v.
The Panel finds Complainant has met the requirements of Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cambridgesavings.mobi> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: October 30, 2009
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