Barclays Bank plc v. HTP Services c/o James Peter
Claim Number: FA0610000818534
Complainant is Barclays Bank plc (“Complainant”), represented by James A. Thomas, of Parker Poe Adams & Bernstein LLP, Post Office Box 389, Raleigh, NC 27602. Respondent is HTP Services c/o James Peter (“Respondent”), 595 Christopher Ave., Brooklyn, NY 11212.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <barclaysplc-london.com>, registered with Enom, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 12, 2006; the National Arbitration Forum received a hard copy of the Complaint on October 16, 2006.
On October 13, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <barclaysplc-london.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 24, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 13, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@barclaysplc-london.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 16, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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." 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:
Complainant was founded over 300 years ago, and provides
retail banking, investment banking and investment management services to
individual and institutional customers across the globe.
In connection with the provision and promotion of its
financial products and services, Complainant holds numerous trademark
registrations for the BARCLAYS mark with the United Kingdom Patent Office
(“UKPO”) (Reg. No. 1,314,306, issued July 20, 1990), the European Union Office
for Harmonization in the Internal Market (“OHIM”) (Reg. No. 55,236, issued
January 26, 1999) and the United States Patent and Trademark Office (“USPTO”)
(Reg. No. 3,049,848, issued January 24, 2006).
Respondent registered the <barclaysplc-london.com> domain
on September 17, 2006.
The disputed domain name resolves to a website that purports
to be affiliated with a third-party banking institution.
The resulting website contains messages related to online financial services and requests that the visitor submit personal and financial information through an online form.
Respondent’s <barclaysplc-london.com> domain name is confusingly similar to Complainant’s BARCLAYS mark.
Respondent does not have any rights or legitimate interests in the <barclaysplc-london.com> domain name.
Respondent has registered and uses the <barclaysplc-london.com> domain in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark 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 was registered and is being used by Respondent 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."
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in
the BARCLAYS mark through registration of the mark in a number of
jurisdictions, including the United States, the United Kingdom and the European
Union. See Janus Int’l Holding
Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions
have held that registration of a mark is prima
facie evidence of validity, …."); see also Innomed Techs., Inc. v. DRP
Servs., FA 221171 (Nat. Arb. Forum
Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes
Complainant's rights in the mark.”).
Complainant contends that the <barclaysplc-london.com> domain name is confusingly similar to its BARCLAYS mark. The disputed domain name contains Complainant’s BARCLAYS mark in its entirety, and merely adds the corporate designation, “plc,” a hyphen, and the geographic designation, “London.” The addition of common corporate designations such as “plc,” hyphens and geographic designations such as “London,” fails to differentiate domain names from the marks contained therein. Accordingly, the <barclaysplc-london.com> domain name is confusingly similar to Complainant’s BARCLAYS mark pursuant to Policy ¶ 4(a)(i). See Nat’l Westminster Bank v. Cameron, FA 648166 (Nat. Arb. Forum Mar. 31, 2006) (finding a disputed domain name to be confusingly similar to a mark contained therein because, among other variations, it merely added the corporate designation, “plc”). See also Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003): “The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.” Further see Nat’l Westminster Bank plc v. [Redacted], FA 724496 (Nat. Arb. Forum July 20, 2006) (finding the domain name <natwestbklondon.com> to be confusingly similar to a complainant’s NATWEST mark).
The Panel therefore finds that Policy ¶ 4(a)(i) has been
satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant bears the initial burden to make out a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. If Complainant successfully establishes such a showing, the burden shifts to Respondent, so that Respondent must come forward with evidence to show that it does have rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where a complainant has asserted that a respondent has no rights or legitimate interests with respect to a domain name, it is incumbent on that respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002):
Because
Complainant’s Submission constitutes a prima
facie case under the Policy, the burden effectively shifts to
Respondent. Respondent’s failure to respond means that Respondent has not
presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).
The allegations of the Complaint are adequate to make out a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name.
Moreover, Respondent’s failure to submit a Response in this
proceeding suggests that it lacks rights and legitimate interests in the
disputed domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a response, a respondent failed to invoke any
circumstance which could demonstrate any rights or legitimate interests in the
domain name); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002):
Respondent's failure to respond not only
results in its failure to meet its burden, but also will be viewed as evidence
itself that Respondent lacks rights and legitimate interests in the disputed
domain name.
Nonetheless, the Panel chooses to
analyze the evidentiary record to determine if there is any basis for
concluding that Respondent has rights or legitimate interests in the disputed
domain name.
We begin by noting that Respondent registered the disputed domain name under “HTP Services” care of “James Peter” of Brooklyn, New York. For this reason, and because there are no evidentiary indications to the contrary, we conclude that Respondent is not commonly known by the disputed domain name or any variation thereof pursuant to Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that a respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because that respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that a respondent does not have rights in a domain name when that respondent is not known by the competing mark).
We next observe that the disputed domain name resolves to a website purporting to be affiliated with a third-party banking institution. The resulting website contains messages related to online financial services and requests that the visitor submit personal and financial information through an online form. Because the disputed domain name is confusingly similar to Complainant’s BARCLAYS mark and the content to which it resolves deals with the purported provision of online financial services, it is evident that Respondent’s use of the contested domain is a blatant attempt to employ Complainant’s mark to further a scheme to defraud Internet users. These deceptive activities, commonly referred to as phishing, do not qualify as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under to Policy ¶ 4(c)(iii). See Troika Dialog Inv. Co. v. Lafford, FA 779806 (Nat. Arb. Forum) (finding that the use of a contested domain name and company-related content in an attempt to capture sensitive username and password information in a phishing scheme fails to meet the requirements set forth in Policy ¶¶ 4(c)(i) and (iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
It can be inferred from the confusingly similar nature of the disputed domain name and the financial content on the resulting website that Respondent is engaged in a deceptive phishing scheme whereby it is attempting to extract personal and financial information from unsuspecting Internet users. It has been held many times by other panels that the registration and use of a domain name for the purpose of facilitating a phishing scheme evidences bad faith pursuant to Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because a respondent used a domain name to redirect Internet users to a website that imitated a complainant’s site fraudulently to acquire personal information from that complainant’s clients); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a respondent registered and used a domain name in bad faith because it redirected Internet users to a website that imitated a complainant’s site and for the purpose of fraudulently acquiring personal information from that complainant’s potential associates).
Moreover, it is evident that Respondent registered the
contested domain name with either actual or constructive knowledge of
Complainant’s rights in the BARCLAYS mark by virtue of Complainant’s prior
registrations of its mark with the pertinent national and international
authorities. Registration of a
confusingly similar domain name despite such actual or constructive knowledge
evidences bad faith registration and use of a domain name pursuant to Policy ¶
4(a)(iii). See, for example, Digi
Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002); see also Orange Glo Int’l v. Blume,
FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <barclaysplc-london.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 20, 2006
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