Australia and New Zealand Banking Group Limited v. Direct Privacy ID E7E64
Claim Number: FA1210001466078
Complainant is Australia and New Zealand Banking Group Limited (“Complainant”), represented by David Fixler of Corrs Chambers Westgarth, Australia. Respondent is Direct Privacy ID E7E64 (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <anzhomeloans.com>, registered with DNC Holdings, lnc.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 6, 2012; the National Arbitration Forum received payment on October 6, 2012.
On October 08, 2012, DNC Holdings, lnc confirmed by e-mail to the National Arbitration Forum that the <anzhomeloans.com> domain name is registered with DNC Holdings, lnc and that Respondent is the current registrant of the name. DNC Holdings, lnc has verified that Respondent is bound by the DNC Holdings, 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 October 11, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 2012 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 david.fixler@corrs.com.au and chris.charlton@anz.com. Also on October 11, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 9, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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
Trademark/Service Mark Information: ICANN Rule 3(b)(viii).
Details of the pending applications for and registrations of trademarks owned by the Complainant as at 29 March 2012 in which the main element is ANZ (including the trade mark ANZ BANK) are attached to the Complaint. The ANZ Trade Marks have been registered for a range of financial goods and services in countries throughout the world including Australia, Cambodia, Canada, European Community, Fiji, France, Germany, Guernsey, Hong Kong, India, Indonesia, Japan, Jersey, Kiribati, Kingdom of Tonga, Laos, Malaysia, Mexico, New Zealand, Papua New Guinea, Peoples Republic of China, Philippines, Republic of Korea, Samoa, Singapore, Solomon Islands, Switzerland, Taiwan, Thailand, United Arab Emirates, United Kingdom, United States of America, Vanuatu and Vietnam.
FACTUAL AND LEGAL GROUNDS
THE COMPLAINANT
The Complainant is a diversified financial services company that provides a wide variety of financial products and services to institutional, commercial and individual clients around the world. It is one of the largest companies in Australia and New Zealand and one of the top 50 banks in the world. The Complainant is listed on the Australian Stock Exchange under the name Australian and New Zealand Banking Group Limited. The Complainant has achieved the leading global bank ranking in the Dow Jones Sustainability Index for the past three consecutive years. The Complainant has conducted its business by reference to, amongst other trademarks, the acronym ANZ since about 1951, when it was first decided that the acronym would be adopted as an element in all of its advertising. The Complainant achieved registration of trademarks incorporating the acronym ANZ as early as 1974. Given the size and number of corporate entities comprising the Complainant, it is also widely known as, and referred to by the name, ANZ Group.
As at 30 September 2010, the Complainant had $531.74 billion in assets and more than 48,000 employees providing banking, insurance, investment, mortgage and consumer finance advice, amongst other services, for more than 8 million customers through locations in more than 32 countries across Australasia, the Pacific, Europe, Dubai, United States of America and Asia in addition to its Internet site www.anz.com. As at June 2009, the Complainant had 1,031 branches worldwide, with 814 branches in Australia, 162 branches in New Zealand and 55 branches in the other countries in which it has a presence.
Stemming from the Bank of Australasia which opened in Sydney in 1835, the Complainant has built a reputation over more than 170 years for providing quality financial products through both branch and online services using the latest security technology.
RANGE OF GOODS
Since 1951, the range of products and services provided by the Complainant by reference to the acronym ANZ has expanded to include everyday banking, financial advice, institutional banking and Internet and mobile phone banking.
ADVERTISING
The Complainant invests millions of dollars each year in advertising and promoting its products and services by reference to the ANZ Trade Marks (amongst other things). For example, in the period from 2006 to 2009, the Complainant invested approximately $149 million into advertising campaigns in Australia alone.
The Complainant is also an active sponsor of local and international sporting and theatrical events around the world, including: the ANZ Ladies Masters, ANZ Stadium, Sydney Festival, Wicked the Broadway musical, ANZ Netball Championship, Taronga Zoo, the IRB Pacific Nations Cup, and the IRB Pacific Rugby Cup.
Through stadium naming rights in Sydney, the Complainant has been recognized around the world by fans of the Australian National Rugby League, Australian Football League, the FIFA World Cup, and of major artists such as the Police, U2 and the Rolling Stones who have all performed at ANZ titled stadiums.
Throughout Australia, the Complainant prides itself on contributing to the community in both metropolitan and rural areas. Local Australian events that the Complainant has supported over time range from sport, arts and environmental conservation sponsorships. The Complainant has invested in local agricultural/ trade shows; and local community sporting associations and events, in addition to donating bursaries and scholarships for a variety of educational pursuits.
WEBSITE
Since about 1996, the Complainant has spent a considerable amount of money and time developing its official website (the Website) accessible via domain names including anz.com and anzbanking.com, which is designed to educate and inform the public about the Complainant and its products and services and enable clients of the Complainant to use many of its products and services online. The Website features a detailed history of the Complainant and up to date information on any changes to products and services.
ANZ is a brand name which is known to millions of individuals throughout the world. The scope of the business, significant advertising expenditure, and brand exposure via sponsorship and the Website all illustrate the extent to which the Complainant has built its reputation, and the significant goodwill globally which attaches to its trade marks at common law.
COMPLAINT
[a.] Identical and/or Confusingly Similar (UDRP Policy ¶4(a)(i))
The Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has a long line of proven title and right.
The Disputed Domain Name incorporates, as a distinguishing feature, the acronym ANZ, which is the core element of all of the ANZ Trade Marks. The use of the distinctive acronym in the Disputed Domain Name renders it confusingly similar to one or more of the ANZ Trade Marks, including the trade mark for ANZ BANK (Australian registered trade mark number 327615), and registered domain names including anz.com. In particular, the Complainant is the owner of registered Australian trade mark numbers 1298392 and 1310607 for the word ANZ, 327615 for the word ANZ BANK and United States trade mark number 4097589 for the word ANZ.
The use of the letters "www" in the Disputed Domain Name does not distinguish it from ANZ's trade mark (Nike, Inc v Alex Nike (WIPO Case No D2001-1115) concerning the domain name wwwnike.com) rather the inclusion of this part of the Disputed Domain Name shows that it was clearly registered in bad faith.
Moreover, the addition of the word "homeloans" does not distinguish the Disputed Domain Name from the Complainant's trade mark as those words allude to and are descriptive of the products provided by the Complainant. Rather the use of the words "homeloans" increases the likelihood of confusion with the Complainant's trade mark (see Spencer Douglass, MGA v Bail Yes Bonding WIPO Case No. D2004-0261).
The Complainant relies upon the reputation which it has created around the world in the ANZ Trade Marks.
The Complainant has filed this Complaint and seeks the transfer of the Disputed Domain Name in order to protect its customers from the frustration likely to be caused by the conduct of the Respondent.
[b.] Rights or Legitimate Interests (UDRP Policy ¶4(a)(ii))
To the best of the Complainant's knowledge:
i. the Respondent does not own any trademarks incorporating the acronym ANZ;
ii. the Respondent has not and is not offering for sale or selling any products or services which are promoted by reference to the acronym ANZ or any of the other ANZ Trade Marks;
iii. the Respondent has not contacted the Complainant to become an authorized seller or supplier of products and services promoted by reference to any of the ANZ Trade Marks; and
iv. the Respondent is not commonly known by reference to the Disputed Domain Name.
The Complainant is unable to locate any information concerning the Respondent to indicate that it has any connection with any products or services which are provided by reference to the acronym ANZ.
The Disputed Domain Name wholly incorporates one or more of the Complainant's registered trademarks for the acronym ANZ and accordingly infringes one or more of the ANZ Trade Marks. See Slep-tone Entertainment Corp. v. Sound Choice Disk Jockeys, Inc., FA 93636 (Nat. Arb. Forum Mar. 13, 2000) (finding that the Respondent had no rights or legitimate interests in the domain name because the domain name infringes the Complainant's mark).
It seems plain to the Complainant that the only reason the Respondent has registered the Disputed Domain Name is to derive "click-through" revenue resulting from visits to the site from users who intend to visit a site hosted by the Complainant. Such use cannot constitute a bona fide use of the Disputed Domain Name in accordance with paragraph 4(c)(i). See Australia and New Zealand Banking Group Limited v. Bashar Ltd (WIPO Case No.D2007-0031).
Annexed to this complaint and marked number [5] are printouts of the website accessible via the Disputed Domain pages as at 20 September 2012, showing that the website consisted entirely of hyperlinks, primarily to the websites of financial services providers, including hyperlinks to the websites of the Complainant's competitors and an unauthorized hyperlink to the Complainant's own website.
The Complainant submits that the Respondent's use of the Disputed Domain Name as the address for a website that consists of hyperlinks, from which the Respondent is likely to have derived 'click-through' fees, indicates that the Respondent has no rights on legitimate interests in the Disputed Domain Name.
ATTEMPTS TO RESOLVE DISPUTE
On 20 August 2012, the Complainant sent a letter of demand to Flying Stingrays Ltd, the registrant identified in a WHOIS search performed on 10 August 2012, using the email address for the registrant shown in the WHOIS search (accounting@flyingstingrays.com).
No response to the letter of demand was received by the Complainant.
After the letter of demand was sent to Flying Stingrays Ltd, the registrant details on WHOIS changed and now show the registrant to be "Direct Privacy ID E7E64". However, the hyperlinks website which presently appears at the website was not taken down.
The conduct of the Respondent set out above indicates to the Complainant that the Respondent has no rights or legitimate interest in the Disputed Domain Name.
BREACH OF SERVICE TERMS
The Respondent is using the Disputed Domain Name in a manner which is contrary to the terms of an agreement between it and its chosen domain name registrar DNC Holdings, Inc. In particular, the Respondent is acting contrary to the registrar's terms of service available via its website (at http://www.directnic.com/legai/#BREACHANDREVOCATION). Clause 13 of the registrar's terms of service provides (emphasis added):
You represent and warrant that:
i. you will keep all information provided by you in connection with our
Services complete, reliable, and accurate at all times;
ii. each time you register a domain name that, to the best of your knowledge and belief, neither the registration of the domain name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party, and that the domain name is not being registered, used or facilitated for any unlawful purpose; and
iii. in applying for a domain name, the registration is not made in bad faith and that the domain name does not conflict with another domain name or any rights of anyone other than you.
Accordingly, by registering and using the Disputed Domain Name the Respondent has breached the terms of service. The Respondent is continuing to knowingly infringe one or more of the ANZ Trade Marks.
By contrast, the Complainant has strong connections with and real rights to the Disputed Domain Name. As outlined above, the Complainant is the registered owner of many registered trademarks around the world in respect of the acronym ANZ. Furthermore, it has built a significant reputation in the ANZ Trade Marks through its activities detailed above. The Complainant has developed a significant amount of goodwill in the ANZ brand which can be traced back far earlier in time than the Respondent's registration of the Disputed Domain Name.
(i.) Whether, before any notice to the Respondent of the dispute, Respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name is in connection with a bona fide offering of goods or services; or
As mentioned above, to the best of the Complainant's knowledge the Respondent has not and is not offering for sale or selling any products or services which are promoted by reference to the acronym ANZ.
The Respondent has not contacted the Complainant to become an authorized seller or supplier of products and services promoted by reference to any of the ANZ Trade Marks and is not otherwise, to the best of the Complainant's knowledge, offering for sale or selling any genuine product or service provided by the Complainant which are promoted by reference to the acronym ANZ or any of the other ANZ Trade Marks.
It is certainly clear that the Respondent's conduct, in trading off of the reputation of the Complainant for the purpose of deriving "click-through" fees, cannot constitute a "bona fide offering of goods or services". See DLJ Long Term Investment Corporation v BargainDomainNames.com (NAF Case No FA104580) (finding that using the disputed domain name to divert internet users to a website that contained links to other websites, including websites of the complainant's competitors, is not a bona fide offering of goods or services).
(ii.) Whether Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if Respondent has not acquired trademark or service mark rights; or
To the best of the Complainant's knowledge, the Respondent is not commonly known by reference to the Disputed Domain Name. To the best of the Complainant's knowledge, the Respondent does not own any trademarks incorporating the acronym ANZ.
The Respondent does not offer for sale or sell any products or services with the Complainant's authority by reference to the acronym ANZ.
(iii.) Whether Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent is not making any legitimate non-commercial or fair use of the Disputed Domain Name. On the contrary the Respondent has registered and is using the Disputed Domain Name in bad faith for the purposes of obtaining revenue by deriving 'click-through' fees.
[c.] Registration and Use in Bad Faith (UDRP Policy ¶4(a)(iii))
(i.) Whether there are circumstances indicating that Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the domain name; or
There is no evidence to date to suggest that the Respondent registered the Disputed Domain Name primarily for the purpose of selling or renting it to the Complainant or a competitor of the Complainant.
(ii.) Whether Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
There is no evidence to date to suggest that the Respondent has attempted to prevent the Complainant from reflecting the ANZ Trade Marks in a corresponding domain name, or that the Respondent has engaged in any pattern of such conduct.
(iii.) Whether Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
There is no evidence to date to suggest that the Respondent has registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor.
(iv.) Whether by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site or location or of a product or service on Respondent's web site or location.
The Respondent has been causing internet users to come into contact with links contained on the website accessible via the Disputed Domain Name which do not offer genuine ANZ products and services. The Complainant submits that the Respondent has been using the Disputed Domain Name for the sole purpose of obtaining personal financial gain by deriving 'click-through' fees from internet traffic on the website.
The Respondent's bad faith is further indicated by its use of a privacy shield after the letter of demand from the Complainant. Panels have previously found that an inference of bad faith may be drawn from such conduct (See Ustream.TV, Inc. v. Vertical Axis, Inc, WIPO Case No Case No. D2008-0598).
It is clear that the Respondent is trying to assimilate the Disputed Domain Name with the reputation and goodwill associated with the ANZ Trade Marks. Diverting internet users in this way amounts to use of the Disputed Domain Name in bad faith for commercial gain for the purposes of paragraph 4(b)(iv). See AssociatedNewspapers Limited v Domain Manager (NAF Case No FA201976) (From the links on the website the Panelist inferred that the Respondent was deriving 'click through' fees and was therefore profiting from the use of the domain name as prohibited by paragraph 4(b)(iv)). See also Red Hat, Inc. v. Haecke (NAF Case No FA 726010) (Panel found that the respondent engaged in bad faith registration and use by using the domain names "to operate a commercial search engine with links to the software products of Complainant and its competitors and also to divert Internet users to several different domain names").
Finally see Australia and New Zealand Banking Group Limited v Domain Manager (NAF Case No FA 1438801) where, in relation to similar conduct, the Panel found:
Respondent is attempting to mislead Internet users into believing that content on the <wwwanzinternetbanking.com> website is endorsed by, or associated with, the Complainant. Respondent's website presents Internet users with third-party links which do not offer genuine ANZ products and services thereby confusing such users as to the source, affiliation and sponsorship of such links and of the website itself As mentioned above within the Panel's discussion regarding Rights and Interests, Respondent intends to commercially gain from its registration and use of the at-issue domain name by garnering "click-through" fees from Internet traffic to the offending website. Clearly, Respondent calculates that enhanced traffic will be derived from the confusion it has created as to the website's sponsorship. These circumstances demonstrate Respondent's bad faith registration and use of the at-issue domain name pursuant to Policy
The Respondent has been attempting to divert internet users from the Complainant's Website for the purpose of financial gain by creating a likelihood of confusion with a name in which the Complainant has rights.
CONCLUDING COMMENTS
The Complainant submits that this Complaint complies with all applicable provisions of the ICANN Rules and ICANN Policy. In particular, the Complainant submits that it has provided evidence addressing all of the elements required to be satisfied in paragraph 4 of the ICANN Policy for the Panelist to order that the domain name registration be transferred to the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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."
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(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.
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.”).
Complainant bases its rights in the ANZ mark upon its registration with various trademark offices, such as those with IP Australia (“IPA”) and the United States Patent & Trademark Office (“USPTO”). See e.g., USPTO Reg. No. 2,282,802 registered June 3, 1998; IPA Reg. No. 327,615 registered Jan. 2, 1979. Complainant’s registration of the AZN mark with multiple national trademark authorities is sufficient to establish Complainant’s rights in the ANZ mark pursuant to Policy ¶4(a)(i). See 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).”). For these reasons, the Panel concludes Complainant has satisfactorily established its rights in the “ANZ” mark under Policy ¶4(a)(i).
Complainant claims Respondent’s <anzhomeloans.com> domain is confusingly similar to Complainant’s ANZ mark because the disputed domain merely adds “homeloans” to the otherwise distinctive ANZ mark. The Panel concurs and notes a confusing similarity may exist given the similarity between the phrase “homeloans” and the broad range of financial services associated with Complainant’s ANZ mark. 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). gTLDs such as “.com” are disregarded in performing this analysis (especially since every domain name must contain either a gTLD or ccTLD to be valid). See 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). For these reasons, the Panel concludes Respondent’s <anzhomeloans.com> domain is confusingly similar to Complainant’s ANZ pursuant to Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See 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 UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent is not commonly known by the <anzhomeloans.com> domain name. Complainant claims Respondent has neither registered rights related to the disputed domain, nor does Respondent offer or sell any products with Complainant’s permission to use the ANZ domain. The WHOIS information identifies “Direct Privacy ID E7E64” as the registrant, which is a privacy service. This Panel has previously held a respondent cannot acquire any rights to a domain name registered through a privacy service because the identity of the true owner cannot be determined. Respondent has not come forward with any evidence indicating Respondent is commonly known by the disputed domain name. Therefore, the Panel finds Respondent is not commonly known by the <anzhomeloans.com> domain as required under 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 that it is commonly known by the domain name).
Complainant claims Respondent is not making a bona fide offering of goods or services through the <anzhomeloans.com> domain. The disputed domain offers nothing more than a series of “click-through” hyperlinks through which Respondent gains revenues. The <anzhomeloans.com> domain name resolves to a website consisting almost entirely of hyperlinks to other domains, including several of Complainant’s competitors. Based upon this information, the Panel concludes Respondent has failed to establish a bona fide offering of goods or services because the disputed domain name offers nothing other than links to third-party websites. See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii)). Operating revenue generated “click-through” hyperlinks does not constitute a legitimate noncommercial use. See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Respondent is not using the disputed domain in furtherance of a legitimate noncommercial use or a bona fide offering of goods or services as required under Policy ¶¶4(c)(i) and (iii).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent registered the <anzhomeloans.com> domain name in bad faith. Complainant argues Respondent is relying on the similarities between the AZN mark and the <anzhomeloans.com> domain name to confuse internet users into going to the disputed domain and clicking on the hyperlinks therein. Complainant argues Respondent is generating revenues for each Internet user who clicks on one of the hyperlinks on the website resolving from the <anzhomeloans.com> domain name. The use of a disputed domain name primarily to gain profits by directing Internet users to third-party links, including Complainant’s competitors, is evidence of bad faith registration. See 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).”) see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Furthermore, Respondent registered the disputed domain name using a privacy service upon learning of Complainant’s claim. As this Panel has held, registering a domain name using a privacy service raises a rebuttable presumption of bad faith registration and use in the commercial context. This case arises in a commercial context. Respondent has taken no steps to rebut this presumption. This is sufficient for the Panel to conclude the domain name was registered and is being used in bad faith.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <anzhomeloans.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, November 12, 2012
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