Claim Number: FA1004001320817
Complainant is Australia and New Zealand Banking Group Limited (“Complainant”), represented by Melissa
McGrath, of Corrs Chambers Westgarth,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <anzbnak.com> and <anzvisarewards.com>,
registered with Above.com Pty 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 23, 2010.
On April 26, 2010, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <anzbnak.com> and <anzvisarewards.com> domain names are registered with Above.com Pty Ltd. and that Respondent is the current registrant of the names. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 April 28, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2010 by which Respondent could file a response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@anzbnak.com and postmaster@anzvisarewards.com. Also on April 28, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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" through submission of a Written Notice, as defined in Rule 1. 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:
Complainant is a diversified
financial services company offering services to institutional, commercial and
individual clients worldwide.
Complainant owns multiple
trademark registrations for the ANZ mark worldwide, including with
Respondent registered the
<anzbnak.com> disputed domain
name on November 8, 2009 and the <anzvisarewards.com>
disputed domain name on November 21, 2009.
Respondent’s domain names resolve to directory websites displaying links to the website of Complainant, and links to other parties’ websites offering financial services and products competing with the business of Complainant.
Respondent’s <anzbnak.com> and <anzvisarewards.com> domain names are confusingly similar to Complainant’s ANZ mark.
Respondent is not commonly known by the disputed domain names.
Respondent does not have any rights to or legitimate interests in the <anzbnak.com> and <anzvisarewards.com> domain names.
Respondent registered and uses the <anzbnak.com> and <anzvisarewards.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of either of the domain names; and
(3) the domain names were registered and are being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s mark registrations with a national trademark authority demonstrate Complainant’s rights in the ANZ mark for the purposes of Policy ¶ 4(a)(i). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding a complainant’s registrations for its HONEYWELL mark throughout the world sufficient to establish its rights in the mark under the Policy ¶ 4(a)(i)); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that a complainant had established rights in marks where the marks were registered with a trademark authority).
Respondent’s disputed <anzbnak.com> and <anzvisarewards.com> domain names are confusingly similar to Complainant’s ANZ mark because both domain names incorporate Complainant’s full mark. Respondent attempts to differentiate the disputed domain names from Complainant’s mark by adding either the misspelled descriptive term “bnak” or the terms “visa” and “rewards” and appending the generic top-level domain (“gTLD”) “.com” are unavailing. Neither adding generic or descriptive terms nor a gTLD to a mark removes the disputed domain names from the realm of confusing similarity. See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007):
The
additions of generic words with an obvious relationship to Complainant’s
business and a gTLD renders the disputed domain name confusingly similar to
Complainant’s mark pursuant to Policy ¶ 4(a)(i).
See also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
Therefore, the Panel finds that Respondent’s disputed domain names <anzbnak.com> and <anzvisarewards.com> are confusingly similar to Complainant’s ANZ mark for purposes of Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights to and legitimate interests in the disputed domain names. Once Complainant has advanced a prima facie case under this head of the Policy, the burden shifts to Respondent to demonstrate its rights to or legitimate interests in the disputed domain names. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that:
complainant must first
make a prima facie case that respondent lacks rights and legitimate interests
in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden
shifts to respondent to show it does have rights or legitimate interests.
Complainant has adequately established a prima facie case in these proceedings. Because Respondent has failed to respond to the allegations against it, we may presume that Respondent lacks any rights to or legitimate interests in the disputed domain names.
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.
Nonetheless, we elect to examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent possesses rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We
begin by noting that Complainant alleges, and Respondent does not deny, that
Respondent is not commonly known by the disputed domain names and Respondent
does not offer for sale or sell any genuine financial products or services with
Complainant's authority by reference to the ANZ mark. Moreover, the WHOIS
information for the disputed domain names list the registrant only as “Ho Nim,”
which does not resemble either of the disputed domain names. On this record, we must conclude that
Respondent is not commonly known by either of the disputed domain names so as
to have shown that it has rights to or legitimate interests in the domains as
provided in Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA
830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that a respondent
failed to establish rights to or legitimate interests in the domain name <emitmortgage.com>
where that respondent was not authorized to register domain names featuring a
complainant’s mark and there was no evidence that it was commonly known by the
disputed domain name); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA
715089
(Nat. Arb. Forum July 17, 2006) (concluding that a
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the relevant WHOIS
information, suggesting that that respondent was commonly known by the disputed
domain name).
We also observe that Complainant contends, without objection from Respondent, that Respondent’s <anzbnak.com> and <anzvisarewards.com> domain names resolve to websites listing links to Complainant, Complainant’s competitors, and other completely unrelated websites. Respondent’s maintenance of a website with no function other than listing presumed links, from which it presumably receives income in the form of pay-per-click or similar fees, is not a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the contested domain names under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because that respondent was using the domain name to operate a website containing links to various competing commercial websites, which was not 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)); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a contested domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
The Panel thus finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s domain names resolve to websites featuring links to businesses in competition with that of Complainant. Because Internet users being diverted to Respondent’s website may subsequently click on one of Complainant’s competitors’ links, the result is disruption of Complainant’s business, which evidences bad faith registration and use of the contested domains pursuant to Policy ¶ 4(b)(iii). See Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that a respondent registered and used the <sportlivescore.com> domain name to disrupt a complainant’s business under the LIVESCORE mark because that respondent maintained a website in competition with the business of a complainant); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use of domain names pursuant to Policy ¶ 4(b)(iii) by using them to operate a commercial search engine with links to websites featuring the products of a complainant and that complainant’s competitors, as well as by diverting Internet users to several other domain names).
By incorporating Complainant’s mark in the disputed domain names, Respondent attempts to benefit from the goodwill associated with the mark and draw in Internet users seeking Complainant’s services and products. Respondent thus endeavors to mislead Internet users into believing that the content on Respondent’s websites is in some way sponsored or endorsed by Complainant. Respondent presumably receives “pay-per-click” fees from each visit by an Internet user to one of the links featured on the resolving websites. This is all evidence of bad faith registration and use of the contested domains pursuant to Policy ¶ 4(b)(iv). See Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002): “By use of <yahgo.com> to operate its search engine, a name that infringes upon Complainant’s mark, Respondent is found to have created circumstances indicating that Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or of a product or service on the website as proscribed in Policy ¶ 4(b)(iv).” See also Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that a respondent’s use of the <arizonashuttle.net> domain name, which contained a complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to that respondent’s website offering travel services in competition with the business of that Complainant, came within the strictures of Policy ¶ 4(b)(iv)).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <anzbnak.com> and <anzvisarewards.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 8, 2010
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