Australia and New Zealand Banking Group Limited v. Nguyen The Anh / Cong ty CP Duoc Pham ANZ Tai Viet Nam
Claim Number: FA1010001351993
Complainant is Australia and New Zealand Banking Group Limited (“Complainant”), represented by Matthew Swinn of Corrs Chambers Westgarth, Austrialia. Respondent is Nguyen The Anh / Cong ty CP Duoc Pham ANZ Tai Viet Nam (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <anzgroup.asia>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 13, 2010; the National Arbitration Forum received payment on October 13, 2010.
On Oct 18, 2010, Directi Internet Solutions Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <anzgroup.asia> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. Directi Internet Solutions Pvt. Ltd. has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 19, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 8, 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@anzgroup.asia. Also on October 19, 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 November 17, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <anzgroup.asia> domain name is confusingly similar to Complainant’s ANZ mark.
2. Respondent does not have any rights or legitimate interests in the <anzgroup.asia> domain name.
3. Respondent registered and used the <anzgroup.asia> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Australia and New Zealand Banking Group Limited, is a diversified financial services company. They provide numerous financial services to companies and individuals around the world. Accordingly, they have registered the ANZ mark with numerous trademark authorities including the National Office of Industrial Property of Vietnam (“NOIP”) (Reg. No. 5,298 issued on January 29, 1992).
Respondent, Nguyen The Anh / Cong ty CP Duoc Pham ANZ Tai Viet Nam, registered <anzgroup.asia> on November 5, 2009. The site resolves to a list of links related to Complainant’s goods or services.
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 sufficient rights to enforce the mark. Complainant has a long history of use of the mark. Moreover, Complainant has registered the ANZ mark with a federal trademark authority in the Respondent’s home country, Vietnam’s NOIP (Reg. No. 5,298 issued on January 29, 1992). This sufficiently evidences Complainant’s rights in the mark under Policy ¶ 4(a)(i). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority); see also Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i))
The Panel also finds the <anzgroup.asia> domain name to be confusingly similar to Complainant’s ANZ mark pursuant to Policy ¶ 4(a)(i). First, the disputed domain name wholly incorporates the ANZ mark. This incorporation can render a domain name confusingly similar alone, without any other alterations. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”) Then, the domain name combines a generic term with the mark and adds a required sponsored top-level domain (“sTLD”). The addition of the generic term “group” fails to distinguish the domain name from the ANZ mark. The term “group” can be used to describe financial institutions such as ANZ. The second addition of the sTLD “.asia” is also irrelevant. See NexTag, Inc. v. Nextag.Travel, FA 1163853 (Nat. Arb. Forum May 6, 2008) (“the addition of an sTLD…should be treated the same as the addition of a generic top-level domain, such as “.com,” for the purposes of analysis under Policy ¶ 4(a)(i)”); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, pursuant to Policy ¶ 4(a)(i), the Panel finds that Respondent’s <anzgroup.asia> domain name is confusingly similar to Complainant’s ANZ mark.
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <anzgroup.asia> domain name. The burden shifts to the respondent to prove that the respondent does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii) once Complainant makes a prima facie case in support of its allegations. In light of the evidence provided, the Panel finds Complainant has made a sufficient prima facie case. Because the Respondent has failed to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <anzgroup.asia> 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 Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
The Panel finds that there is a lack of evidence indicating that the Respondent is commonly known by the <anzgroup.asia> domain name. Respondent’s WHOIS information does not match the domain name nor has Respondent provided any evidence indicating otherwise. This leads the Panel to conclude that Respondent does not have any rights or legitimate interests in the domain name under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
The Respondent’s website resolves to a large banner with the title “Vietnam ANZ Pharma branch.” A list of links to business news articles are displayed below the banner. The Panel presumes these links are being displayed for some benefit to Respondent. This type of use of a confusingly similar domain name evidences the lack of a bona fide offering of goods and services under Policy ¶ 4(c)(i) as well as a lack of legitimate interests under Policy ¶ 4(c)(iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name)
Based on the evidence above, the Panel finds that Policy ¶ 4(a)(ii) is satisfied.
The Panel finds that Respondent’s use of the website competes with Complainant’s mark in the area of banking and therefore is evidence of bad faith pursuant to Policy ¶ 4(b)(iii). Respondent’s website displays links to financial news and investments in competition with Complainant. This use of a domain name to disrupt Complainant’s business is evidence of bad faith under Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business)
Due to the similarity between the disputed domain name and Complainant’s mark the Panel finds that Respondent is using the domain to attract Internet users to Respondent’s site and redirect them from Complainant’s own products and services. The Panel finds that this practice is presumably used for commercial gain and thus indicates bad faith registration and use under Policy ¶ 4(b)(iv). G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) is 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 <anzgroup.asia> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: December 1, 2010
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