Zions Bancorporation v. JUNWEN CHU / Future iService Corporation
Claim Number: FA1407001570352
Complainant is Zions Bancorporation (“Complainant”), represented by John H. Rees of Callister Nebeker & McCullough, Utah, USA. Respondent is JUNWEN CHU / Future iService Corporation (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zionsbank.us>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 17, 2014; the National Arbitration Forum received payment on July 17, 2014.
On July 18, 2014, GODADDY.COM, INC. confirmed by e-mail to the National Arbitration Forum that the <zionsbank.us> 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 U.S. Department of Commerce’s Domain Name Dispute Resolution Policy (the “Policy”).
On July 21, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 2014 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@zionsbank.us. Also on July 21, 2014, 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 August 20, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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 usTLD Policy, usTLD 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
Complainant contends as follows:
Complainant uses the ZIONS BANK mark in connection with financial and banking services. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,381,006 registered Aug. 29, 2000). The domain name is identical to the ZIONS BANK mark.
Respondent has no rights or legitimate interests in the <zionsbank.us> domain name. Respondent has never been known by the domain name. Respondent is using the <zionsbank.us> domain name to host commercial hyperlinks.
Respondent has registered and used the domain name in bad faith. Respondent is using hyperlink advertisements on the <zionsbank.us> domain name that are disrupting Complainant’s business. Further, Respondent’s use of the domain name creates likelihood for Internet users to confuse Complainant as a source or offering of the hyperlinks viewable on the <zionsbank.us> domain name’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO registered trademark for the ZIONS BANK mark.
Respondent is not affiliated with Complainant and had not been authorized to use the ZIONS BANK mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in ZIONS BANK.
The at-issue domain name creates a likelihood that Internet users will mistakenly assume Complainant is a source or sponsor of the hyperlinks displayed on the <zionsbank.us> 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."
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 or is being used in bad faith.
Given the similarity between the UDRP and usDRP, the Panel will use UDRP decisions handed down by prior panels when and where appropriate and relevant.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO registration for the ZIONS BANK trademark demonstrates its rights in such mark for the purposes of usTLD 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.”).
Respondent’s domain name contains Complainant’s entire trademark, less its space, with the country-code top-level domain name, “.us,” appended thereto. These differences do nothing to distinguish the domain name from the at-issue domain name for the purpose of the Policy. Therefore, the Panel finds that the at-issue domain name is identical to Complainant’s ZIONS BANK trademark. See Lockheed Martin Corp. v. Roberson, FA 323762 (Nat. Arb. Forum Oct. 19, 2004) (holding that the ccTLD “.us” does not differentiate the disputed domain name from Complainant’s mark).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name lists “JUNWEN CHU / Future iService Corporation” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <zionsbank.us> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to usTLD Policy ¶ 4(c)(iii). 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) [the UDRP section equivalent to usTLD Policy 4(c)(iii)] does not apply).
Respondent is using the <zionsbank.us> domain name to host commercial hyperlinks. Using the at-issue domain name in this manner is neither a bona fide offering of goods or services under usTLD Policy ¶ 4(c)(ii), nor a legitimate noncommercial or fair use usTLD under Policy ¶ 4(c)(iv). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (finding that commercial hyperlinks are not bona fide offerings of goods or services).
Given the forgoing, Complainant satisfies its initial burden under usTLD Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, usTLD Policy ¶4(b) specific bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the usTLD Policy.
As mentioned above, Respondent is using hyperlink advertisements such as “Bad Credit Loan” or “Personal Loan $5K-$100K.” on the <zionsbank.us> website. The use of these hyperlinks shows Respondent is offering competing services to consumers and in doing so is disrupting Complainant’s business. Such use of the domain name demonstrates Respondent’s bad faith under usTLD Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Finally, Respondent’s use of the domain name confuses Internet users into erroneously supposing that Complainant is the source of, is a sponsor of, is affiliated with, or endorses the hyperlinks displayed on Respondent’s <zionsbank.us> website. Respondent’s bad faith attempt to profit from the likelihood Internet users will be confused as to the Complainant’s association with the at-issue domain name demonstrates Respondent’s bad faith pursuant to usTLD Policy ¶ 4(b)(iv). 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).”).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zionsbank.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 21, 2014
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