Danske Bank A/S v. [Registrant]
Claim Number: FA1002001309769
Complainant is Danske Bank A/S (“Complainant”), represented by Nancy
Elbouridi, of Plesner Law Firm,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <danskebankdk.com>, registered with Domaincannon.com LLC.
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
After numerous requests, the Registrar, Domaincannon.com LLC, has not confirmed to the National Arbitration Forum that the <danskebankdk.com> domain name is registered with Domaincannon.com LLC or that Respondent is the current registrant of the name. It also appears from the information that the registrar, Domaincannon.com LLC, is no longer active. Domaincannon.com LLC’s non-compliance has been reported to ICANN. The Forum’s standing instructions are to proceed with this dispute.
On March 19, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 8, 2010 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail to email@example.com.
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 <danskebankdk.com> domain name is confusingly similar to Complainant’s DANSKE BANK mark.
2. Respondent does not have any rights or legitimate interests in the <danskebankdk.com> domain name.
3. Respondent registered and used the <danskebankdk.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Danske Bank A/S,
is the largest bank in
Respondent registered the
<danskebankdk.com> 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.
Respondent registered the
<danskebankdk.com> domain name
Complainant owns a trademark registration for the DANSKE
BANK mark with the OHIM (e.g., Reg. No. 002000222 issued
Complainant alleges that Respondent’s <danskebankdk.com> disputed domain
name is confusingly similar to Complainant’s DANSKE BANK mark. Respondent’s disputed domain name
incorporates Complainant’s full mark; adds the letters “dk,” which represent
the abbreviation for
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
According to Policy ¶ 4(a)(ii), Complainant is first required to present a prima facie case against Respondent, asserting that Respondent lacks rights and legitimate interests in the disputed domain name. Once a prima facie case has been established, the burden shifts to Respondent to show that it does possess rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has adequately put forth a prima facie case in these proceedings and thus the burden now rests on Respondent. Respondent, however, failed to satisfy that burden as it has not responded to the Complaint. Without a Response from Respondent, the Panel may infer that Complainant’s allegations are true and that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). The Panel elects, however, to consider the evidence in record according to the Policy ¶ 4(c) factors in order to determine whether Respondent has any rights or legitimate interests in the disputed domain name.
Complainant asserts that Respondent is not commonly known by
the disputed domain name and is not authorized to use Complainant’s DANSKE
MARK. The WHOIS information for the
disputed domain name does not reflect that Respondent is commonly known by the
disputed domain name. The Panel finds
that the WHOIS information thus supports the conclusion that Respondent is not
commonly known by the disputed domain name and accordingly lacks rights and
legitimate interests under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Complainant argues that Respondent’s disputed domain name resolves to a parked site featuring third-party links to financial services in competition with Complainant. The Panel finds that using the disputed domain name to redirect Internet users to a parked website displaying links for which Respondent presumably receives “click-through” fees is not a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s disputed domain name resolves to a parked site featuring links for services in competition with Complainant. Complainant argues that Respondent’s parked site and use of the disputed domain name disrupts Complainant’s business because unknowing Internet users could find themselves on Respondent’s site and become confused about the association between Complainant and Respondent’s site. The Panel finds that using the disputed domain name in connection with such a parked site disrupts Complainant’s business and is indicative of bad faith registration and use under 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 Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant).
Complainant also argues that Respondent appropriates
Complainant’s mark in the disputed domain name in order to attract
Complainant’s customers for Respondent’s own commercial gain. When Internet users are searching for
Complainant’s site, they might easily think that Respondent’s disputed domain
name will direct them to Complainant’s domain name due to the presence of
Complainant’s mark in the disputed domain name.
Instead, however, the Internet users are directed away from
Complainant’s site to Respondent’s site, where Respondent receives
“click-through” fees if any of the Internet users click on a displayed link.
The Panel finds that Respondent’s efforts to profit by misleading and
attracting Complainant’s customers to Respondent’s own site demonstrate bad
faith registration and use according to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum
June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv)
where the respondent was diverting Internet users searching for the complainant
to its own website and likely profiting); see
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Complainant has established all three elements of the Policy and is entitled to the requested relief. However, in this unique case, the registrar is no longer accredited and the Registry cannot simply transferred a domain name from a registrant to another registrant. Therefore, in order to effectuate the transfer, the Panel Orders the Registry to place the domain name with a Registrar of Complainant's choosing after the 10-business day waiting period proscribed by UDRP para 4(k) has expired. The Registry and the new Registrar shall place the domain name in an account established by Complainant. This action, once completed, shall fulfill the panel's Order to Transfer the <danskebankdk.com> domain name to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: April 22, 2010
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