National Westminster Bank plc v. Olatunji c/o Agboola
Claim Number: FA0612000870327
Complainant is National Westminster Bank plc (“Complainant”), represented by James
A. Thomas, of Parker, Poe, Adams & Bernstein L.L.P.,
Post Office
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <national-west.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.com.
The undersigned certifies that he as acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 21, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 10, 2007 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@national-west.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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:
1. Respondent’s <national-west.com> domain name is confusingly similar to Complainant’s NATIONAL WESTMINISTER mark.
2. Respondent does not have any rights or legitimate interests in the <national-west.com> domain name.
3. Respondent registered and used the <national-west.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, National Westminster Bank plc, is a leading
international financial institution based in the
Respondent, Olatunji, is based in
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’s registration of its NATIONAL WESTMINISTER mark
with the UKPO predates Respondent’s registration of the <national-west.com> domain name. Under the Policy, registration of a mark with
an appropriate governmental authority confers rights in that mark to a complainant. Complainant’s registration of its mark with
the UKPO is sufficient for these purposes regardless of the fact that
Respondent operates from
Compared to Complainant’s NATIONAL WESTMINISTER mark,
Respondent’s <national-west.com>
domain name abbreviates the word “westminister” to “west,” and inserts a hyphen
as well as the generic top-level domain “.com.”
These slight modifications do not avoid a finding of confusing
similarity under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s
<national-west.com> domain
name is confusingly similar to Complainant’s NATIONAL WESTMINISTER mark under
Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <national-west.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because of Respondent’s failure to respond to the Complaint, the panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO, Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant has alleged that Respondent has never been
commonly known by the <national-west.com>
domain name. The WHOIS information
identifies Respondent as “Olatunji c/o Agboola,” and the Panel can find no
other evidence in the record suggesting that Respondent is commonly known by
the name. Therefore, the Panel concludes
that Respondent is not commonly known by the <national-west.com>
domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum
Respondent uses the <national-west.com> domain name as an attempt to “pass itself off” as Complainant in order to defraud Complainant’s customers. Respondent’s domain name resolves to a website that imitated Complainant’s genuine online banking and financial services website and asked for personal and financial information of Internet users interested in Complainant’s services. Complainant has alleged that Respondent was using this website to “phish” for confidential financial information in an attempt to defraud Complainant’s customers. Respondent’s attempt to pass itself off as Complainant and phish for customers’ private information is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum Mar. 13, 2002) (stating that where the respondent copied the complainant’s website in order to steal account information from the complainant’s customers, that the respondent’s “exploitation of the goodwill and consumer trust surrounding the BLIZZARD NORTH mark to aid in its illegal activities is prima facie evidence of a lack of rights and legitimate interests in the disputed domain name”); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) is satisfied.
Respondent uses the <national-west.com> domain
name to divert Internet users seeking Complainant’s financial services to
Respondent’s own website which appeared to offer the same services. Respondent is attempting to profit from the
goodwill associated with Complainant’s NATIONAL WESTMINISTER mark, which is
confusingly similar to Respondent’s <national-west.com> domain
name. Such use of the disputed domain
name is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Monsanto Co. v.
Decepticons, FA 101536 (Nat. Arb. Forum
Respondent uses the <national-west.com> domain
name to engage in a phishing scam, misdirecting Internet users seeking
Complainant’s genuine website to Respondent’s misleading website. By imitating Complainant’s genuine website,
Respondent is deceiving Complainant’s Internet customers and manipulating them
into divulging sensitive personal information.
Thus, Respondent’s use of the <national-west.com>
domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Juno Online Servs.,
Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a
domain name that “is confusingly similar to Complainant’s mark, redirects
Internet users to a website that imitates Complainant’s billing website, and is
used to fraudulently acquire personal information from Complainant’s clients”
is evidence of bad faith registration and use); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat.
Arb. Forum
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 <national-west.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: January 28, 2007
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