Bank of the Sierra v. ICS INC.
Claim Number: FA1504001614547
Complainant is Bank of the Sierra (“Complainant”), represented by Vonn R. Christenson of Christenson Law Firm, LLP, California, USA. Respondent is ICS INC. (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bankofthesirra.com>, registered with TUCOWS, INC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 14, 2015; the Forum received payment on April 14, 2015.
On April 15, 2015, TUCOWS, INC. confirmed by e-mail to the Forum that the <bankofthesirra.com> domain name is registered with TUCOWS, INC. and that Respondent is the current registrant of the name. TUCOWS, INC. has verified that Respondent is bound by the TUCOWS, 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 April 20, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 2015 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@bankofthesirra.com. Also on April 20, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On May 18, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 alleges that it began business in 1977. It has registered its trademark BANK OF THE SIERRA with the United States Patent and Trademark Office. Complainant is in possession of a registration certificate for this trademark registration number 3,711,134 in International Class 36 for banking services. The issue date of this registration is November 17, 2009.
Complainant further alleges that Respondent registered the disputed domain name that is confusingly similar to Complainant’s incontestable trademark registration. The disputed domain name is <bankofthesirra.com>. The Respondent arrived at the disputed domain name by eliminating the spaces from the trademark and misspelling “sierra” to “sirra”.
Further, the Complainant alleges that the Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the disputed domain name and Respondent is not licensed or otherwise authorized to use the disputed domain name.
The resolving web site tied to the disputed domain name provides links to competitors of the Complainant. The Complainant alleges that this does not give the Respondent rights or legitimate interests in or to the domain name.
Finally, Complainant alleges that the Respondent registered and is using the disputed domain name in bad faith. Complainant claims that the Respondent uses the disputed domain name to misdirect competing business from Complainant to the links provided for at the disputed domain name web site.
As the Complainant registered its domain name, <bankofthesierra.com> on April 17, 1996 and its trademark issued in 2009, Complainant alleges that, upon information and belief, the Respondent had actual knowledge of Complainant’s rights and intentionally adopted a confusingly similar domain name to capitalize on this confusion.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on March 21, 2010.
As the Respondent has failed to file a response in this matter, the Panel shall decide this case based on the reasonable assertions of the Complainant. As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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 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.”).
There is little question here that the disputed domain name is confusingly similar to the subsisting trademark registration of the Complainant. To arrive at the disputed domain name, Respondent merely omitted spaces, added the gTLD .com and misspelled “sierra” as “sirra”. These minor alterations are not sufficient to establish a distinguishing feature in the disputed domain name. In fact, it is clear that the Respondent is merely engaged in “typosquatting.”
As such, the Panel finds that the disputed domain name is confusingly similar to the registered trademark of the Complainant.
It is equally clear that Respondent has no rights or legitimate interests in or to the disputed domain name. The WHOIS information shows no connection between the disputed domain name and the Respondent. The Respondent is not commonly known by the disputed domain name. The Respondent’s use of the disputed domain name to provide links to competitors of the Complainant does not give it any right or legitimate interest in or to the disputed domain name.
As such, the Panel finds that the Respondent lacks any right or legitimate interest in or to the disputed domain name.
Respondent registered and has been using the disputed domain name in bad faith. Respondent relies on the confusion it created with the disputed domain names to misdirect Internet traffic to links sponsored by competitors of the Complainant.
Although Complainant does not specify what “information and belief” it is relying on to come to the conclusion that the Respondent had actual notice of its pre-existing trademark claims, as there is no evidence in the record to dispute this claim, the Panel accepts it as true.
Therefore, given the totality of the circumstances, it is clear that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <bankofthesirra.com> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: May 19, 2015
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