Australia and New Zealand Banking Group Limited v. Jeremy Cobb / No Sleep LLC.
Claim Number: FA1101001369385
Complainant is Australia and New Zealand Banking Group Limited (“Complainant”), represented by David Fixler of Corrs Chambers Westgarth, Australia. Respondent is Jeremy Cobb / No Sleep LLC. (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <anzcreditcard.info>, registered with GoDaddy.com, Inc.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 25, 2011; the National Arbitration Forum received payment on January 24, 2011.
On January 25, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <anzcreditcard.info> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 31, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 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@anzcreditcard.info. Also on January 31, 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 March 1, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <anzcreditcard.info> domain name is confusingly similar to Complainant’s ANZ mark.
2. Respondent does not have any rights or legitimate interests in the <anzcreditcard.info> domain name.
3. Respondent registered and used the <anzcreditcard.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Australia and New Zealand Banking Group Limited, operates a financial services business. Complainant conducts its business under the ANZ mark which is registered with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,282,802 issued October 5, 1999).
Respondent, Jeremy Cobb, registered the <anzcreditcard.info> domain name on November 12, 2010. The disputed domain name resolves to a website that attempts to obtain the personal and financial information of Internet users.
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 asserts that it has established rights in the ANZ mark. The Panel determines that registration of a mark with a federal trademark authority such as the USPTO, is sufficient to establish rights in a mark. Accordingly, the Panel finds that Complainant has sufficiently demonstrated that it has rights in the ANZ mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also 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)).
Complainant, under Policy ¶ 4(a)(i), also contends that Respondent’s <anzcreditcard.info> domain name is confusingly similar to the ANZ mark. Respondent has incorporated Complainant’s entire mark and merely added the descriptive terms “credit” and “card” to the mark. The Panel finds that using Complainant’s entire mark, in addition to adding descriptive terms with an obvious relationship to Complainant’s business, are actions that fail to differentiate the disputed domain name from Complainant’s mark. Furthermore, the Panel finds that the addition of a generic top-level domain (“gTLD”) such as “.info” is irrelevant to its analysis under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s ANZ mark.
The Panel finds Policy ¶ 4(a)(i) has been established.
Complainant alleges that Respondent lacks rights or legitimate interests in the disputed domain name. Previous panels have concluded that a complainant must first make a prima facie showing in support of its allegations before respondent acquires the burden of showing it does have rights or legitimate interests in the domain name. The Panel finds Complainant has met its burden. Because Respondent failed to respond to these proceedings, the Panel chooses to infer that Respondent lacks rights or legitimate interests in the <anzcreditcard.info> domain name under Policy ¶ 4(a)(ii). However, the Panel elects to the consider the evidence presented in the record in light of the factors contained in Policy ¶ 4(c), to determine whether Respondent has rights or legitimate interests in the domain name. 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 Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Complainant asserts that Respondent is not commonly known by the disputed domain name. Respondent has not alleged any evidence supporting a finding that it is commonly known by the disputed domain name, and Complainant contends that it has never authorized Respondent to use the ANZ mark. The WHOIS information lists the registrant of the <anzcreditcard.info> domain name as “Jeremy Cobb,” which the Panel determines to be dissimilar to the disputed domain name. The Panel can find no evidence that would support a finding for Respondent and therefore determines that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Furthermore, Respondent is using the <anzcreditcard.info> domain name in a fraudulent “phishing” scheme. Respondent operates a website resolving from the disputed domain name which prompts Internet users to divulge personal information in association with a false credit card application purportedly coming from Complainant. The Panel finds that using the disputed domain name in such a manner is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
The Panel finds Policy ¶ 4(a)(ii) has been established.
Complainant asserts that Respondent has engaged in bad faith registration and use of the <anzcreditcard.info> domain name under ¶ 4(b)(iv) of the Policy. Respondent is attempting to attract, for commercial gain, Internet users seeking Complainant’s financial services to Respondent’s own website where it encourages users to sign up for a credit card. The Panel finds that Internet users are likely to become confused as to Complainant’s sponsorship of, or affiliation with, the website resolving from the disputed domain name. Therefore, a finding of Respondent’s bad faith registration and use, is warranted pursuant to Policy ¶ 4(b)(iv). See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
Lastly, Complainant alleges that Respondent’s phishing venture is evidence of bad faith registration and use of the <anzcreditcard.info> domain name. Complainant contends that Respondent uses the disputed domain name in an attempt to mislead Internet users into divulging personal and financial information through the use of a false online credit card form. The Panel finds that phishing qualifies as evidence of bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers).
The Panel finds Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <anzcreditcard.info> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: March 9, 2011
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