Australia and New Zealand Banking Group Limited v. wang xuemei
Claim Number: FA1101001369384
Complainant is Australia and New Zealand Banking Group Limited (“Complainant”), represented by David Fixler of Corrs Chambers Westgarth, Melbourne, Australia. Respondent is wang xuemei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <anzbankingnz.info>, registered with GoDaddy.com, lnc.
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 January 25, 2011; the National Arbitration Forum received payment on January 25, 2011.
On January 25, 2011, GoDaddy.com, lnc. confirmed by e-mail to the National Arbitration Forum that the <anzbankingnz.info> domain name is registered with GoDaddy.com, lnc. and that Respondent is the current registrant of the name. GoDaddy.com, lnc. has verified that Respondent is bound by the GoDaddy.com, lnc. 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 January 27, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2011 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@anzbankingnz.info. Also on January 27, 2011, 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 February 23,2011 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 <anzbankingnz.info> domain name is confusingly similar to Complainant’s ANZ BANK mark.
2. Respondent does not have any rights or legitimate interests in the <anzbankingnz.info> domain name.
3. Respondent registered and used the <anzbankingnz.info> 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 that provides a wide variety of financial products and services to institutional, commercial, and individual clients throughout the world. Complainant owns several trademark registrations with governmental trademark authorities worldwide including those for its:
1. ANZ:
a. Hong Kong Intellectual Property Office (“HKIPO”) (e.g., Reg. No. 200210114AA issued June 12, 2001);
b. Intellectual Property Office of New Zealand (“IPONZ”) (e.g., Reg. No. 806246 issued November 5, 2009); and
c. Chinese State Intellectual Property Office (“SIPO”) (e.g., Reg. No. 773962 issued December 14, 1994) and
2. ANZ BANK marks
a. Australian Trademark Office (“AUTO”) (e.g., Reg. No. 327615 issued January 2, 1979);
b. Canadian Intellectual Property Office (“CIPO”) (e.g., Reg. No. TMA314180 issued November 1, 1985); and
c. HKIPO (e.g., Reg. No. 02947/1994 issued February 3, 1992).
Respondent, wang xuemei, registered the <anzbankingnz.info> domain name on October 31, 2010. Respondent’s disputed domain name previously resolved to a website that featured third-party links to Complainant and Complainant’s competitors in the financial services industry. Respondent’s disputed domain name presently 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.
Complainant has submitted evidence to show that it owns numerous trademark registrations for its ANZ, (HKIPO e.g., Reg. No. 200210114AA issued June 12, 2001); (IPONZ e.g., Reg. No. 806246 issued November 5, 2009); and (SIPO e.g., Reg. No. 773962 issued December 14, 1994), and ANZ BANK marks, (AUTO e.g., Reg. No. 327615 issued January 2, 1979); (CIPO e.g., Reg. No. TMA314180 issued November 1, 1985); and (HKIPO e.g., Reg. No. 02947/1994 issued February 3, 1992), with several governmental trademark authorities worldwide. The Panel accepts such evidence as a prima facie showing that Complainant possesses rights in its marks under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
Complainant argues that the <anzbankingnz.info> domain name is confusingly similar to Complainant’s ANZ BANK mark. Complainant contends that the disputed domain name contains its mark entirely, while removing the space between the terms of the mark, adding the suffix “ing,” and the letters “nz,” which are the country code for New Zealand. Complainant notes that the additions to its mark add to the confusing similarity, and that the addition of the generic top-level domain (“gTLD”) “.info” does nothing to distinguish the domain name from Complainant’s mark. The Panel finds that Respondent’s <anzbankingnz.info> domain name is confusingly similar to Complainant’s ANZ BANK mark under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights and legitimate interests in the <anzbankingnz.info> domain name. Complainant is required to make a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to show that it possesses rights or legitimate interests in the disputed domain name. 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 Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”). The Panel finds that Complainant has produced a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the <anzbankingnz.info> 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 Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the <anzbankingnz.info> domain name. Complainant alleges that Respondent is not authorized or licensed to use Complainant’s ANZ or ANZ BANK marks. The WHOIS information identifies the domain name registrant as “wang xuemei,” which Complainant contends is not similar to Respondent’s <anzbankingnz.info> domain name. Respondent has failed to respond to these allegations and has failed to present evidence that would suggest that Respondent is not commonly known by the disputed domain name. The Panel concludes that Respondent is not commonly known by the <anzbankingnz.info> domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); 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).
Complainant contends that Respondent’s disputed domain name previously resolved to a website that featured third-party links to Complainant and its competitors in the financial services industry. Complainant argues that such use of a confusingly similar domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. The Panel agrees, and finds that Respondent’s previous use of the domain name as a links directory website was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”); see also Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did not constitute 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)).
Further, Complainant argues that after it sent a letter to Respondent demanding that it transfer the disputed domain name to Complainant, the Respondent subsequently removed the third-party hyperlinks from the resolving website. Complainant contends that the disputed domain name now resolves to a website that reads, “Page cannot be displayed. Please contact service provider for more details.” The Panel finds that Respondent’s current failure to make an active use of the disputed domain name is evidence that Respondent does not have rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has submitted sufficient evidence to show that Respondent previously used the disputed domain name to display third-party links to Complainant’s official website as well as the website of Complainant’s competitors. The Panel determines that such use of the disputed domain name is evidence that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also 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)).
Further, Complainant argues, and the Panel infers, that Respondent’s previous use of the disputed domain name rewarded Respondent with financial compensation from the businesses advertised and linked-to on Respondent’s website. Therefore, the Panel finds that Respondent’s previous use of the disputed domain name is also evidence of bad faith under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
Lastly, Complainant argues that Respondent is not currently making an active use of the disputed domain name. The Panel finds that Respondent’s current failure to make an active use of the disputed domain name that contains Complainant’s entire mark is further evidence that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See 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); see also 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).
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 <anzbankingnz.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: February 23, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page