Claim Number: FA1005001323935
Complainant is Australia and New Zealand Banking Group Limited (“Complainant”), represented by Melissa
McGrath, of Corrs Chambers Westgarth,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <anzbankfx.com>, registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 11, 2010.
On May 12, 2010, Melbourne IT, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <anzbankfx.com> domain name is registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne IT, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne IT, Ltd. d/b/a Internet Names Worldwide 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 May 13, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 2, 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@anzbankfx.com. Also on May 13, 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 June 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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" 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <anzbankfx.com> domain name is confusingly similar to Complainant’s ANZ BANK mark.
2. Respondent does not have any rights or legitimate interests in the <anzbankfx.com> domain name.
3. Respondent registered and used the <anzbankfx.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent, Chung Tran, registered the <anzbankfx.com> domain name on January 28, 2010. The disputed domain name does not resolve to an active website.
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 BANK mark under Policy ¶ 4(a)(i) through its trademark registration
with IP Australia (Reg. No. 327,615 issued January 2, 1979). See
Renaissance
Hotel Holdings, Inc. v. Renaissance
Complainant contends that Respondent’s <anzbankfx.com>
domain name is confusingly similar
to Complainant’s ANZ BANK mark pursuant to Policy ¶ 4(a)(i). The <anzbankfx.com>
domain name differs from Complainant’s ANZ BANK mark in three ways: (1) the
space between the terms has been deleted; (2) the letters “fx” have been added
to the mark; and (3) the generic top-level domain (“gTLD”) “.com” has been
added to the mark. The Panel finds that
neither deleting a space nor adding two letters to the end of a mark does
anything to distinguish a domain name from that mark. See
Nat’l Geographic Soc’y v.
Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that
the domain name <nationalgeographics.com> was confusingly similar to the
complainant’s NATIONAL GEOGRAPHIC mark);
see also Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000)
(finding that <kelsonmd.com> is identical or confusingly similar to the
complainant’s federally registered service mark, KELSON). The Panel also finds that the addition of a
gTLD does not distinguish a disputed domain name from a mark. See Jerry Damson,
Inc. v.
The Panel finds that
Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or
legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts
to Respondent to prove it has rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii).
Based on the arguments made in the Complaint, the Panel finds that
Complainant has established a prima facie
case in support of its contentions.
Respondent has failed to submit a Response to these proceedings. See
Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006)
(finding the “complainant must first make a prima facie case that [the]
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show
it does have rights or legitimate interests.”); see also 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). Nevertheless, the Panel will examine the
record to determine if Respondent has rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known by the <anzbankfx.com> domain name, and that Complainant has never been licensed or authorized to use the ANZ BANK mark. The WHOIS information for the disputed domain name lists the domain name registrant as “Chung Tran.” In light of this 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 <anzbankfx.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 Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Complainant contends that Respondent’s <anzbankfx.com> domain name resolves to an inactive website. The Panel finds Respondent’s failure to make an active use of the domain name is evidence that Respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”); see also Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that it may consider the totality of the
circumstances when conducting a Policy ¶ 4(a)(iii) analysis, and that it is not
limited to the enumerated factors in Policy ¶ 4(b). See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph
4(b) are intended to be illustrative, rather than exclusive.”).
Complainant contends that Respondent is not making an active use of the confusingly similar <anzbankfx.com> domain name. The Panel finds Respondent’s failure to make an active use of the disputed domain name is sufficient to support a finding of bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
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 <anzbankfx.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: June 21, 2010
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