Claim Number: FA0910001290187
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <anz-online.com> and <anz-au.net>, registered with Tucows Inc.
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.
Hon. Karl V. Fink (Ret) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 20, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 20, 2009.
On October 21, 2009, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <anz-online.com> and <anz-au.net> domain names are registered with Tucows Inc. and that Respondent is the current registrant of the names. Tucows Inc. has verified that Respondent is bound by the Tucows 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 October 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 12, 2009by 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@anz-online.com and postmaster@anz-au.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 16, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <anz-online.com> and <anz-au.net> domain names are confusingly similar to Complainant’s ANZ mark.
2. Respondent does not have any rights or legitimate interests in the <anz-online.com> and <anz-au.net> domain names.
3. Respondent registered and used the <anz-online.com> and <anz-au.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent, Brian Hale, registered the <anz-online.com> domain name on April 11, 2009, and the <anz-au.net> domain name on April 12, 2009. Both of the disputed domain names resolve to a website that seeks to induce Internet visitors to submit their confidential personal information. The website uses Complainant’s ANZ mark to appear to be a website affiliated with Complainant. The disputed domain names have also been used to send e-mails to Internet users in attempts to obtain their confidential personal information.
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
the ANZ mark for purposes of Policy ¶ 4(a)(i) through its trademark
registrations with the USPTO (Reg. No. 2,282,802 issued
Complainant contends that Respondent’s <anz-online.com> domain name is confusingly similar to its ANZ mark. The <anz-online.com> domain name differs from Complainant’s mark in three ways: (1) a hyphen has been added to the end of the mark; (2) the generic term “online” has been added to the end of the mark; and (3) the generic top-level domain (“gTLD”) “.com” has been added. The Panel finds that neither the addition of a hyphen, nor the addition of the generic term “online” sufficiently distinguishes a domain name from an incorporated mark for the purposes of Policy ¶ 4(a)(i). The Panel finds that the addition of a gTLD also does not reduce the likelihood of confusion between the domain name and the mark, because every domain name must contain a gTLD. Therefore, the Panel finds that these changes do not minimize or eliminate the resulting likelihood of confusion, and so Respondent’s <anz-online.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”); see also Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
Complainant contends that
Respondent’s <anz-au.net> domain name is also confusingly similar to its ANZ mark. The <anz-au.net>
domain name differs from Complainant’s mark in four ways: (1) a hyphen has been
added to the end of the mark; (3) the geographic term “au,” an abbreviation for
Australia, has been added to the end of the mark; and (3) the generic top-level
domain (“gTLD”) “.net” has been added. The
Panel finds that neither the addition of a hyphen, nor the addition of an
abbreviated geographic term sufficiently distinguishes a domain name from an
incorporated mark for the purposes of Policy ¶ 4(a)(i). The Panel finds that the addition of a gTLD
also does not reduce the likelihood of confusion between the domain name and
the mark, because every domain name must contain a TLD. Therefore, the Panel finds that as above,
these changes do not minimize or eliminate the resulting likelihood of
confusion, and so Respondent’s <anz-au.net>
domain name is confusingly similar to
Complainant’s mark pursuant to Policy ¶ 4(a)(i). See
Sports
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the disputed domain names. Under Policy ¶ 4(a)(ii), after the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing evidence that it does have rights and legitimate interests in the disputed domain names. The Panel finds that Complainant has made a prima facie case under Policy ¶ 4(a)(ii). 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Complainant contends that Respondent is not commonly known
by any of the disputed
domain names nor has it ever been the owner or licensee of the ANZ mark. The
WHOIS records for the disputed domain names show Respondent as “Brian Hale,” and there is no affirmative
evidence that Respondent has ever been known by the ANZ
mark, or any derivation thereof.
Because of this lack of evidence, along with the fact that Respondent
has failed to show any evidence contrary to Complainant’s contentions, the
Panel finds that Respondent is not commonly known by the disputed domain names pursuant
to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum
Respondent maintains a
website at the disputed
domain names that displays Complainant’s ANZ mark and appears to offer financial services. Complainant contends that Respondent is
passing off the website resolving from the disputed domain
names as one of Complainant’s own websites, in an apparent attempt to get
access to Internet visitors’ confidential personal information, a practice
known as “phishing.” Complainant also
contends that Respondent is using the disputed domain names to send e-mails
that also constitute “phishing” for confidential personal information. The Panel finds that these uses of the
disputed domain
names are neither a bona fide
offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See
Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Complainant’s business is being
disrupted because Respondent is passing off the website resolving from the disputed domain names
(registered
Complainant also contends that Respondent is gaining
commercially through this diversion, both through the likelihood of confusion
with Complainant’s mark and through Respondent’s “phishing” activity. The Panel finds that this is an intentional
use of the disputed domain names for commercial gain through a likelihood of
confusion with Complainant’s mark, and so, pursuant to Policy ¶ 4(b)(iv), this
use is also evidence of registration and use in bad faith. See
State Fair of
Complainant also contends that Respondent is intentionally using Complainant’s ANZ mark to engage in a “phishing” scheme to get access to the confidential personal information of Internet visitors who mistake Respondent’s website resolving from the disputed domain names for Complainant’s legitimate website. The Panel finds that this use of the disputed domain names is also evidence of registration and use in bad faith 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 because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the 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 <anz-online.com> and <anz-au.net> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret), Panelist
Dated: November 30, 2009
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