International Bancshares Corporation v. P-GTG1502 / G Domains / Galib Gahramanov
Claim Number: FA1109001407423
Complainant is International Bancshares Corporation (“Complainant”), represented by Matthew M. Jennings of Cox Smith Matthews Incorporated, Texas, USA. Respondent is P-GTG1502 / G Domains / Galib Gahramanov (“Respondent”), Azerbaijan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ibcbanklogin.com>, registered with Key-Systems GMBH.
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 September 13, 2011; the National Arbitration Forum received payment on September 15, 2011.
On September 15, 2011, Key-Systems GMBH confirmed by e-mail to the National Arbitration Forum that the <ibcbanklogin.com> domain name is registered with Key-Systems GMBH and that Respondent is the current registrant of the name. Key-Systems GMBH has verified that Respondent is bound by the Key-Systems GMBH 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 September 22, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 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@ibcbanklogin.com. Also on September 22, 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 October 18, 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, 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 <ibcbanklogin.com> domain name is confusingly similar to Complainant’s IBC BANK mark.
2. Respondent does not have any rights or legitimate interests in the <ibcbanklogin.com> domain name.
3. Respondent registered and used the <ibcbanklogin.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, International Bancshares Corporation, is the owner of the IBC bank mark which it uses in connection with providing banking and financial services. The IBC mark has been registered by Complainant with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,533,950 registered January 29, 2002).
Respondent, P-GTG1502 / G Domains / Galib Gahramanov, registered the <ibcbanklogin.com> domain name on September 1, 2011. The disputed domain name resolves to a website which displays links containing references to various financial products.
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 contends that it has established its rights in the IBC BANK mark. The Panel has been provided with evidence of Complainant’s registration of the IBC BANK mark with the USPTO (Reg. No. 2,533,950 registered January 29, 2002). Panels have held in past cases such as Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum Dec. 21, 2006), and Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002), that the registration of a mark with a federal trademark authority is sufficent for a finding of a complainant’s rights in the mark. Additionally, panels have consistently held that the registration of a mark need not be in the country in which the respondent operates in order to satisfy Policy ¶ 4(a)(i). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). The Panel thus finds, given Complainant’s registration of its mark with a federal trademark authority, that Complainant has established its rights in the IBC BANK mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <ibcbanklogin.com> domain name is confusingly similar to its IBC BANK mark. The Panel finds that the addition of the generic term “login” is insufficient to differentiate the disputed domain name from Complainant’s mark. See Am. Online, Inc. v. Anytime Online Traffic Sch., FA 146930 (Nat. Arb. Forum Apr. 11, 2003) (finding that the respondent’s domain names, which incorporated the complainant’s entire mark and merely added the descriptive terms “traffic school,” “defensive driving,” and “driver improvement” did not add any distinctive features capable of overcoming a claim of confusing similarity); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporates the VIAGRA mark in its entirety, and deviates only by the addition of the word “bomb,” the domain name is rendered confusingly similar to the complainant’s mark). Additionally, the Panel finds that, because spaces are not allowed in domain names and a generic top-level domain (“gTLD”) is required in each domain name, that Respondent’s deletion of the space in Complainant’s mark and the addition of the gTLD “.com” are irrelevant for the purposes of a Policy ¶ 4(a)(i) analysis. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <ibcbanklogin.com> domain name is confusingly similar to Complainant’s IBC BANK mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Once a complainant makes a prima facie case in support of its assertions, the burden shifts to the respondent to disprove the complainant’s claims. 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 Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech. Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”). Complainant argues that Respondent has neither rights nor legitimate interests, and the Panel finds that Complainant has made a prima facie case in support of this. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). Nevertheless, the Panel will examine the evidence against the Policy ¶ 4(c) factors to determine whether Respondent has rights and legitimate interests in the disputed domain name.
A respondent that demonstrates that it is commonly known by a disputed domain name may have rights or legitimate interests in the domain name. The Panel may determine whether Respondent is commonly known by the <ibcbanklogin.com> domain name by looking to the WHOIS record and any other available information. See 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); 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 WHOIS records lists “P-GTG1502 / G Domains / Galib Gahramanov” as the domain name registrant. The Panel finds that the disputed domain name does not reflect the domain name registrant listing, and there is a lack of other relevant evidence on this issue. Therefore, the Panel finds that Respondent is not commonly known by the <ibcbanklogin.com> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent has not used the disputed domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use. The <ibcbanklogin.com> domain name resolves to a website that displays links that compete with Complainant’s business. Panels have found that the display of competing links on an infringing domain name demonstrates a respondent’s lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and 4(c)(iii) as seen in cases like ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007), and Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007). The Panel thus finds that Respondent’s use of the <ibcbanklogin.com> domain name to display links to Complainant’s competitors is neither a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and 4(c)(iii).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s registration and use of the <ibcbanklogin.com> domain name was done in bad faith as a means to disrupt the business of Complainant. The display of competing links on a disputed domain name has consistently been held to be disruptive to a complainant. See 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)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors). The <ibcbanklogin.com> domain name was registered and is being used to display links to Complainant’s competitors under headings such as “Create an Offshore IBC,” “3 Bureau Credit Report,” and “Online Bank Accounts.” Therefore, the Panel finds that Respondent’s registration and subsequent use of the disputed domain name is disruptive to Complainant pursuant to Policy ¶ 4(b)(iii).
Complainant argues also that the <ibcbanklogin.com> domain name has been registered and used in order to take advantage of the confusion that it instills in Internet users. The <ibcbanklogin.com> domain name is confusingly similar to Complainant’s IBC BANK mark. Therefore, Internet users will be confused upon finding the <ibcbanklogin.com> domain name as to whether it is in some way affiliated with Complainant. Reaching the resolving website and finding a listing of links to websites which offer similar services as those which Complainant offers, the Internet users will become certain that there is some affiliation between the disputed domain name and Complainant’s IBC BANK mark. As a result, the Internet users will likely click through these links, and the Panel infers that Respondent is compensated for displaying and diverting Internet traffic through these links. Therefore, the Panel finds that Respondent has registered and used the <ibcbanklogin.com> domain name as a result of its potential for commercial gain under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ibcbanklogin.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 19, 2011
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