Australia and New Zealand Banking Group Limited v. kashala / satish more
Claim Number: FA1201001427043
Complainant is Australia and New Zealand Banking Group Limited (“Complainant”), represented by David Fixler of Corrs Chambers Westgarth, Australia. Respondent is kashala / satish more (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <anzbankinginternet.com>, registered with Name.com LLC.
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.
The Honorable Charles K. McCotter, Jr. as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 29, 2012; the National Arbitration Forum received payment on January 29, 2012.
On January 30, 2012, Name.com LLC confirmed by e-mail to the National Arbitration Forum that the <anzbankinginternet.com> domain name is registered with Name.com LLC and that Respondent is the current registrant of the name. Name.com LLC has verified that Respondent is bound by the Name.com LLC 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 February 1, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 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 postmaster@anzbankinginternet.com. Also on February 1, 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 February 28, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. 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 <anzbankinginternet.com> domain name is confusingly similar to Complainant’s ANZ mark.
2. Respondent does not have any rights or legitimate interests in the <anzbankinginternet.com> domain name.
3. Respondent registered and used the <anzbankinginternet.com> 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 financial services company that provides financial products and services to clients internationally. Complainant owns numerous registrations for its ANZ mark with the IP Australia (“IPA”), the Intellectual Property Office of New Zealand (“IPONZ”), and India’s Office of the Controller-General of Patents, Designs, and Trademarks (“CGPDTM”), among others.
IPA
Reg. No. 813,667 registered November 12, 1999;
Reg. No. 1,121,785 registered June 4, 2006; and
Reg. No. 1,121,786 registered June 4, 2006.
IPONZ
Reg. No. 614,763 registered May 17, 2000;
Reg. No. 614,764 registered May 17, 2000; and
Reg. No. 614,765 registered May 17, 2000.
CGPDTM
Reg. No. 4,818,18B registered November 30, 1987;
Reg. No. 4,818,17B registered November 30, 1987; and
Reg. No. 1,250,307 registered November 18, 2003.
Respondent, kashala satish more, registered the <anzbankinginternet.com> domain name on June 12, 2011. The domain name resolves to a website displaying hyperlinks to businesses whose products and services compete with Complainant’s business.
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 owns several trademark registrations for its ANZ mark with the IPA, the IPONZ, and CGPDTM, among others. The Panel finds that by registering its mark with multiple agencies, Complainant has successfully established rights in the ANZ mark pursuant to Policy ¶ 4(a)(i). See 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)); see also Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”).
Complainant argues that the disputed domain name <anzbankinginternet.com> is confusingly similar to its ANZ mark. Complainant argues that, by using its ANZ mark in its entirety and adding the descriptive word “banking,” the generic word “internet,” and the generic top-level domain (“gTLD”) “.com,” Respondent’s changes do not render the domain name different from the mark for the purposes of Policy ¶ 4(a)(i). The Panel finds that the additions to Complainant’s mark are not sufficient to distinguish the domain name from the mark under Policy ¶ 4(a)(i). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent failed to differentiate the <aimprofiles.com> domain name from the complainant’s AIM mark by merely adding the term “profiles”); see also Victoria’s Secret v. Plum Promotions, FA 96503 (Nat. Arb. Forum Feb. 27, 2001) (“The mere addition of the generic term “tv” does not reduce the likelihood of confusion under Policy 4(a)(i).”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel consequently determines that Respondent’s <anzbankinginternet.com> domain name is confusingly similar to Complainant’s ANZ mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant argues that Respondent has no rights or legitimate interests in the <anzbankinginternet.com> domain name. Complainant is required, pursuant to Policy ¶ 4(a)(ii), to make a prima facie showing supporting these allegations. If Complainant satisfies this requirement, the burden of proof shifts to the respondent to support the conclusion that it does have rights or 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 SEMCO Prods., LLC v. dmg world media (uk) ltd, FA 913881 (Nat. Arb. Forum Apr. 9, 2007) (concluding that under Policy ¶ 4(a)(ii) and the factors listed in Policy ¶ 4(c), a complainant must first make a prima facie case that the respondent has not used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, that the respondent is not commonly known by the disputed domain name, and that the respondent is not making a legitimate noncommercial or fair use of the disputed domain name before the burden shifts to the respondent to show otherwise). The Panel determines that Complainant has made a prima facie showing in support of its claims. As a result of Respondent’s absence of reply to the allegations, the Panel may draw the inference that Respondent lacks rights or legitimate interests in the disputed domain name. See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise); 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.”). Nonetheless, the Panel will analyze the evidence offered to determine whether or not Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the <anzbankinginternet.com> domain name, nor has Complainant given Respondent authorization to use the ANZ mark. The WHOIS information lists the domain name registrant as “kashala satish more,” which shows that Respondent is not commonly known by the domain name. The Panel determines that Respondent lacks rights or legitimate interests in the <anzbankinginternet.com> domain name 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 of that it is commonly known by the disputed domain name); 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 argues that Respondent is using the disputed domain name in a manner wholly unrelated to a bona fide offering of goods and services and that Respondent is not making a legitimate noncommercial or fair use of the domain name under Policy ¶¶ 4(c)(i) or 4(c)(iii). The <anzbankinginternet.com> domain name resolves to a website which Complainant contends serves to “misleadingly divert consumers by posing as a legitimate banking website associated with the Complainant” and offers products and services that compete Complainant’s business. The Panel concludes that using a domain name to lead consumers to believe it is associated with the holder of the mark and to offer competing services through hyperlinks is evidence that Respondent’s use of the domain name is not in connection with a bona fide offering of goods and services under Policy ¶ 4(a)(i) and that Respondent is not making a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(a)(iii). See 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); see also 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)).
The Panel finds that Policy ¶ 4(a)(ii) is satisfied.
Complainant states that Respondent’s use of the domain name to display competing hyperlinks has not disrupted its business, thus Complainant does not allege Respondent registered the <anzbankinginternet.com> domain name in bad faith. Because Complainant fails to make such an allegation, the Panel will not address registration and use under Policy ¶ 4(b)(iii).
Complainant argues that Respondent’s use of the disputed domain name to misdirect Internet traffic to the corresponding website to earn a profit demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). Complainant alleges the website “deceives members of the public into believing that the Infringing Domain Name and the website” are associated with Complainant and also alleges that the hyperlinks displayed derive “click-through” income to Respondent as a result of users visiting the corresponding website. The Panel finds that Respondent’s operation of the website to attract the public, confuse consumers, and therefore financially profit constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum Apr. 30, 2002) (“Complainants are in the music and entertainment business. The links associated with <billboard.tv> and <boogie.tv> appear to be in competition for the same Internet users, which Complainants are trying to attract with the <billboard.com> web site. There is clearly a likelihood of confusion between <billboard.tv> and BILLBOARD as to the source, sponsorship, affiliation, or endorsement of the web site or of a product or service on the web site.”); see also 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).
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 <anzbankinginternet.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 12, 2012
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