Bank of America Corporation v. P
Claim Number: FA0211000131213
Complainant is Bank of America Corporation, Charlote, NC (“Complainant”) represented by Larry C. Jones, of Alston & Bird, LLP. Respondent is P, Seattle, WA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bank0famerica.com>, registered with Tucows, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 7, 2002; the Forum received a hard copy of the Complaint on November 8, 2002.
On November 14, 2002, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <bank0famerica.com> is registered with Tucows, Inc. and that Respondent is the current registrant of the name. Tucows, Inc. verified that Respondent is bound by the Tucows, Inc. registration agreement and that Respondent 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 November 15, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 5, 2002 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, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On December 26, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 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 allegations:
The <bank0famerica.com> domain name is confusingly similar to Complainant’s BANK OF AMERICA mark. Respondent has no rights or legitimate interests in the <bank0famerica.com> domain name. Respondent registered and used the <bank0famerica.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bank of America Corporation, is the largest consumer bank in the United States and one of the world’s best-known financial institutions. Complainant uses the BANK OF AMERICA mark to denote its banking and financial services. The BANK OF AMERICA mark has been registered with the United States Patent and Trademark Office (“USPTO”) since 1968 (Reg. No. 853,860).
Complainant advertises and promotes its financial-related services worldwide by way of the BANK OF AMERICA mark. Complainant spends a significant amount of resources in connection with its BANK OF AMERICA promotional efforts. In addition, Complainant operates a website at <bankofamerica.com>. At this website Complainant further advertises a wide variety of financial services that it offers under the BANK OF AMERICA mark.
Respondent registered the <bank0famerica.com> domain name on October 24, 2002. Respondent has since used the domain name to divert Internet traffic to the “Screen Prize 2002” website. This website promotes a “Screenwriting Competition.” Complainant learned through communications with Respondent that the <bank0famerica.com> domain name resulted in “30 hits per day” for the associated “Screen Prize 2002” website. Furthermore, Respondent offered to sell the <bank0famerica.com> domain name registration rights to Complainant for $750.
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and will draw such inferences ass the Panel considers appropriate pursuant to paragraph 14(b) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 established in this proceeding that it has rights in the BANK OF AMERICA mark through proof of trademark registration with the USPTO. The domain name registered by Respondent, <bank0famerica.com>, is nearly identical to Complainant’s BANK OF AMERICA mark. The only difference is that the “o” in the mark is changed to the numeral “0.” This is a common technique used by typosquatters to capture the run off of mistyped Uniform Resource Locator (“URL”) entries. The majority of Internet users most likely will successfully type the BANK OF AMERICA mark in the URL. By substituting the numeral “0” in the <bank0famerica.com> domain name, Respondent has not created a domain name that is distinguished from Complainant’s BANK OF AMERICA mark. The domain name would be pronounced the same as Complainant’s mark. Therefore, since the <bank0famerica.com> domain name is a typographical error of the BANK OF AMERICA mark and is phonetically identical to the mark, Respondent’s domain name is confusingly similar to Complainant’s mark. See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistakes by users when entering the url address”); see also Hewlett-Packard Co. v. Cupcake City, FA 93562 (Nat. Arb. Forum Apr. 7, 2000) (finding that a domain name that is phonetically identical to Complainant’s mark satisfies ¶ 4(a)(i) of the Policy).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent has not challenged the Complaint. Complainant fulfilled its burden of submitting a prima facie Complaint, which creates a presumption that Respondent has no rights or legitimate interests in a domain name bearing Complainant’s mark. Respondent was afforded the opportunity to rebut that presumption by articulating rights or legitimate interests in the <bank0famerica.com> domain name but did not submit a Response. The Panel therefore presumes that Respondent has no such rights or legitimate interests based on Complainant’s unchallenged prima facie showing in the Complaint. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).
Furthermore, Respondent’s failure to contest Complainant’s allegations allows the Panel to accept all of Complainant’s allegations as true, and the Panel is permitted to draw all reasonable inferences in Complainant’s favor. See 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”); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
Respondent uses the <bank0famerica.com> domain name to divert unsuspecting Internet users who mistype the BANK OF AMERICA mark to a website wholly unrelated to Complainant. This use of a confusingly similar domain name is unauthorized by Complainant. Presumably, Respondent benefits from the increased traffic, “30 hits per day,” to its “Screen Prize 2002” website. Respondent’s diversionary use of the <bank0famerica.com> domain name does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it does not represent noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent diverts consumers to its own website by using Complainant’s trademarks); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempts to profit from Complainant’s mark by redirecting Internet traffic to its own website).
As previously mentioned, Respondent’s use of the confusingly similar <bank0famerica.com> domain name is not authorized by Complainant. Complainant has never granted Respondent permission to use its BANK OF AMERICA mark for any purpose. Respondent opportunistically ensnares Internet users to Respondent’s website. Further, Respondent is identified as “P” but the email address listed on the WHOIS page denotes the appropriate contact to be Jeremy Stamper, the individual Complainant contacted to give notice of the infringing domain name. Hence, no evidence suggests that Respondent is commonly known by the <bank0famerica.com> domain name and Policy ¶ 4(c)(ii) will not assist Respondent. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent uses the <bank0famerica.com> domain name to route Internet traffic to its “Screen Prize 2002” website. The <bank0famerica.com> domain name is comprised of Complainant’s BANK OF AMERICA mark with a typographical error of “0” in lieu of the “OF”. Thus, traffic that is routed to Respondent’s website is comprised of Internet users who are searching for Complainant’s BANK OF AMERICA mark but mistype the mark in the browser. These facts permit the finding that Respondent knew of the value of Complainant’s BANK OF AMERICA mark and made a calculated decision to trade off of the mark’s goodwill. It is particularly egregious and clear that Respondent sought to take advantage of typos because the letter “o” and the numeral “0” are in close proximity on the keyboard, creating a higher chance of typographical error. Therefore, Respondent’s opportunistic use of the <bank0famerica.com> domain name and apparent knowledge of Complainant’s interest in the BANK OF AMERICA mark support a finding that Respondent acted in bad faith under Policy ¶ 4(a)(iii). See Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000) (“The domain name ‘singaporeairlines.com’ is so obviously connected with a well-known airline that its very registration and use by someone with no connection to the airline suggests opportunistic bad faith. Indeed, it is hard to imagine a more blatant exercise in ‘cybersquatting.’”); see also Household Int’l, Inc. v. Cyntom Enter., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (“Just as the employment of a well-known business name for no particularly good reason undermines any claim to legitimate interest, so it may also support an inference of a bad-faith attempt to use the name to harass or exploit its legitimate owner… Respondent, if he ever was serious in the registration of this domain name, must have relied on the good chance he would attract [Complainant’s] customers”).
Respondent’s offer to sell the registration rights in the <bank0famerica.com> domain name for $750 also supports a finding of bad faith. The Panel may infer that $750 is in excess to any out-of-pocket expenses Respondent had in relation to the <bank0famerica.com> domain name. Furthermore, Respondent has not come forward to defend its sales offer and to provide any evidence that justifies such a price. Respondent’s price is further evidence of its motivation to profit from the confusingly similar domain name. Hence, Respondent’s actions demonstrate bad faith registration and use under Policy ¶ 4(b)(i). See Little Six, Inc v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that Respondent demonstrated bad faith when he requested monetary compensation beyond out of pocket costs in exchange for the registered domain name).
Furthermore, Respondent’s apparent commercial benefit by use of the <bank0famerica.com> domain name represents bad faith. By the nature of the subject domain name being a typographically erroneous version of Complainant’s BANK OF AMERICA mark, Internet users are more likely to be confused regarding Complainant’s affiliation with the resulting website. Thus, Respondent’s conduct represents bad faith registration and use under Policy ¶ 4(b)(iv). See Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain); see also Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy 4(b)(iv)).
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 the requested relief shall be hereby GRANTED. Accordingly, it is Ordered that the domain name <bank0famerica.com> be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 6, 2003.
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