Amegy Bank National Association v. Lee Jaewan c/o Jaewan Lee
Claim Number: FA0911001294884
Complainant is Amegy
Bank National Association (“Complainant”), represented by Alison
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amegy-bank.com>, registered with Onlinenic, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On November 30, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 21, 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@amegy-bank.com 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <amegy-bank.com> domain name is confusingly similar to Complainant’s AMEGYBANK mark.
2. Respondent does not have any rights or legitimate interests in the <amegy-bank.com> domain name.
3. Respondent registered and used the <amegy-bank.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Amegy Bank National Association, provides different
banking services, such as small business banking, financial management and
trust services, and retail and mortgage banking services. Complainant operates over eighty locations in
the state of
Respondent registered the <amegy-bank.com>
domain name on
Respondent has been
a respondent in numerous UDRP proceedings in which disputed domain names
were transferred from Respondent to the complainants in those cases. See
Zulunet, Inc. v. Lee Jaewan, D2001-0473 (WIPO
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.
Respondent registered the <amegy-bank.com> domain
name on
Complainant contends it has established rights in the AMEGYBANK
mark. Complainant holds multiple
trademark registrations of the AMEGYBANK mark with the USPTO (e.g., Reg. No.
3,105,196 issued
Complainant alleges Respondent’s <amegy-bank.com>
domain name is confusingly similar to Complainant’s AMEGYBANK mark. The disputed domain name contains
Complainant’s entire mark and simply adds a hyphen and the generic top-level
domain (“gTLD”) “.com.” Previous panels
have found the addition of a hyphen and a gTLD are insufficient to adequately
distinguish the disputed domain name from a complainant’s mark. See Health
Devices Corp. v.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and
legitimate interests in the <amegy-bank.com> domain name. Previous panels have found that when a
complainant makes a prima facie case
in support of its allegations, the burden shifts to the respondent to prove
that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). The Panel finds Complainant
has made a 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 <amegy-bank.com> 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 Hanna-Barbera Prods., Inc. v.
Entm’t Commentaries,
FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must
first make a prima facie case that the respondent lacks rights and
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before
the burden shifts to the respondent to show that it does have rights or
legitimate interests in a domain name); see also Vanguard Group, Inc.
v. Collazo, FA 349074 (Nat. Arb. Forum
Respondent has
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the <amegy-bank.com> domain
name. Complainant asserts that
Respondent is not authorized to use the AMEGYBANK mark. The WHOIS information identifies Respondent
as “Lee Jaewan c/o Jaewan Lee,” which Complainant contends is not similar to
the disputed domain name. Therefore, the
Panel finds that Respondent has not established rights or legitimate interests
in the <amegy-bank.com> domain name pursuant to Policy ¶
4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA
830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to
establish rights and legitimate interests in the <emitmortgage.com>
domain name as the respondent was not authorized to register domain names
featuring the complainant’s mark and failed to submit evidence of that it is
commonly known by the disputed domain name); see also 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).
Respondent is using the <amegy-bank.com> domain name to resolve to a website featuring
a hyperlink directory. The hyperlinks
resolve to third-parties, some of which compete with Complainant in the banking
industry. Respondent likely receives
click-through fees from the aforementioned hyperlinks. The Panel finds this use
of the confusingly similar disputed domain name is not a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) or a legitimate noncommercial or fair use of the domain name under
Policy ¶ 4(c)(iii). See Jerry Damson, Inc.
v.
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges Respondent’s use of the <amegy-bank.com>
domain name is a part of a pattern
of bad faith use and registration.
Respondent has been a respondent in numerous UDRP proceedings in
which disputed domain names were transferred from Respondent to the complainants
in those cases. See Zulunet, Inc. v. Lee Jaewan, D2001-0473 (WIPO
Respondent’s <amegy-bank.com> domain name resolves to a website containing
a directory of hyperlinks that resolve to third-parties. Some of the third-parties directly compete
with Complainant in the banking industry.
Complainant claims that Respondent’s use of the disputed domain name
disrupts Complainant’s banking services business because Internet users looking
to buy banking products or services from Complainant may be redirected to
Complainant’s competitors through Respondent’s confusingly similar
website. Thus, the Panel finds
Respondent’s use of the <amegy-bank.com> domain name does disrupt
Complainant’s banking business and constitutes bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v.
Domain Mgmt. Servs., FA 877982
(Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly
similar domain name to attract Internet users to a directory website containing
commercial links to the websites of a complainant’s competitors represents bad
faith registration and use under Policy ¶ 4(b)(iii)); see
also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854
(Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website
featured hyperlinks to competing websites and included a link to the
complainant’s website, the respondent’s use of the <redeemaamiles.com>
domain name constituted disruption under Policy ¶ 4(b)(iii)).
The Panel infers
Respondent receives click-through fees from the hyperlinks relating to
Complainant’s competitors in the banking industry as well as the unrelated
third-party websites. Internet users may
become confused as to Complainant’s affiliation and sponsorship of the
third-party hyperlinks and website resolving from the disputed domain
name. The Panel finds Respondent’s
receipt of click-through fees constitutes bad faith registration and use under
Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb.
Forum July 18, 2006) (finding that the respondent engaged in bad faith
registration and use by using a domain name that was confusingly similar to the
complainant’s mark to offer links to third-party websites that offered services
similar to those offered by the complainant); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain
name to operate a website which features links to competing and non-competing
commercial websites from which Respondent presumably receives referral
fees. Such use for Respondent’s own
commercial gain is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).”).
The Panel finds 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 <amegy-bank.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme court, NY (Ret.)
Dated: January 11, 2010
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