The Complainant is Bank of America Corporation, Charlotte, NC, USA ("Complainant") represented by Larry C. Jones, of Alston & Bird, LLP. The Respondent is Stonybrook Investments, Ltd., Belize City, BZ ("Respondent").

The domain names at issue are "BankOAmerica.com", "BankofAmerca.com" and "BankFoAmerica.com" registered with BulkRegister.com.

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 21, 2001; the Forum received a hard copy of the Complaint on February 23, 2001.

On February 22, 2001, BulkRegister.com confirmed by e-mail to the Forum that the domain names "BankOAmerica.com," "BankofAmerca.com," and "BankFoAmerica.com" are registered with BulkRegister.com and that the Respondent is the current registrant of the name. BulkRegister.com has verified that Respondent is bound by the BulkRegister.com 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 February 26, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 19, 2001 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@BankOAmerica.com, postmaster@BankofAmerca.com, and postmaster@BankFoAmerica.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On March 29, 2001, pursuant to Complainant’s request to have the dispute decided by a one member Panel, the Forum appointed Judge Harold Kalina (Ret.) 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." 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 the Respondent.

The Complainant requests that the domain names be transferred from the Respondent to the Complainant.

A. Complainant

Complainant makes the following argument:"Complainant Bank of America Corporation (hereinafter ‘Bank of America’ or ‘Complainant’) is the largest consumer bank in the United States and one of the country’s best-known financial institutions. For several years, Complainant and one of its predecessors, BankAmerica Corporation, have exclusively used the service mark and trade name BANK OF AMERICA to identify their banking and financial services. Complainant has also used the domain name BankofAmerica.com in conjunction with its financial services. Respondent Stonybrook Investments, Ltd., acting in bad faith, has registered and is using the domain names BankOAmerica.com, BankofAmerca.com and BankFoAmerica.com for commercial purposes to direct Internet users to a website where gambling-related products and services are advertised and promoted. Each of Respondent’s domain names made a subject of this proceeding is confusingly similar to Complainant’s BANK OF AMERICA mark and BankofAmerica.com domain name, and Respondent has no preexisting rights or legitimate interests in respect of said domain names. Respondent’s actions fall squarely within the activity ICANN’s Uniform Domain Name Dispute Resolution Policy (‘UDRP’) is intended to remedy."

B. Respondent

No response was filed.

Complainant is a corporation duly organized and existing under the laws of the State of Delaware, having a principal place of business in Charlotte, North Carolina. A predecessor of Complainant was BankAmerica Corporation ("BankAmerica"). Via a series of mergers in September 1998, BankAmerica merged with the successor of NationsBank Corporation, with the resulting merged entity (i.e., the Complainant) later being renamed BankAmerica Corporation. On April 28, 1999, Complainant’s corporate name was changed to Bank of America Corporation.

Complainant is the largest consumer bank in the United States and one of the country’s best-known financial institutions. One of Complainant’s predecessors, BankAmerica, was also one of the country’s best-known banking and financial services organizations at the time of the 1998 mergers which created Complainant. For many years prior to the 1998 mergers, BankAmerica provided a wide range of banking and financial services in various parts of this country. In doing so, it used extensively the service mark and trade name BANK OF AMERICA to promote, advertise and provide its services.

BankAmerica obtained several registrations of its BANK OF AMERICA mark, including U.S. Service Mark Registration No. 853,860, issued July 30, 1968. That registration, now owned by Complainant, is incontestable and, as such, is conclusive evidence of Complainant’s exclusive right to use the BANK OF AMERICA mark in commerce in this country.

Respondent is using each of the subject domain names to direct Internet users to a website having the URL http://www.Casino44.com, on which Respondent advertises and promotes gambling-related products and services.

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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 valid and enforceable common law rights in its BANK OF AMERICA mark in the United States by virtue of its continuous use of such mark in this country for several years. Further, Complainant owns valid statutory rights in its BANK OF AMERICA mark in the United States by virtue of its longstanding use and registration of that mark with the United States Patent and Trademark Office (U.S. Service Mark Reg. No. 853,860).

Each of the disputed domain names is strikingly similar to Complainant’s BANK OF AMERICA mark. In fact, each is identical to Complainant’s mark except that it includes a slight misspelling or common typographical mistake. Since Respondent registered and began using each disputed domain name long after Complainant acquired rights in its mark, Complainant satisfies the first element of proof required under the UDRP. See e.g., Bank of America Corp. v. Yomtobian, FA 94889 (Nat. Arb. Forum June 27, 2000) (transferring to Complainant the domain name <BankForAmerica.com>); Bank of America Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (transferring to Complainant the domain name <wwwBankofAmerica.com>).

The Panel concludes that Complainant has established that the domain names are confusingly similar to its mark.

Respondent did not respond to assert any rights or legitimate interests in the domain names in question. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

The Panel determines that Complainant has established that Respondent has no rights or legitimate interests in the domain names.

Respondent is not a bank, investment firm, or other financial institution, and Respondent has no preexisting rights in "BankOAmerica," "BankofAmerca" or "BankFoAmerica" as a trademark, service mark or trade name. Thus, the Panel concludes that Respondent is not commonly known by the Bank of America mark or any derivation therefrom. Policy ¶ 4(c)(ii).

Further, Respondent is using the confusingly similar domain names to link to a gambling website. Using a confusingly similar domain name to divert Internet users to another Internet location is not a bona fide offering of goods and services under Policy ¶ 4(c)(i). See Société des Bains v. International Lotteries, D2000-1326 (WIPO Jan. 8, 2001) (finding no rights or legitimate interests where Respondent used the domain names <casinomontecarlo.com> and <montecarlocasinos.com> in connection with an on-line gambling website); Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights and legitimate interests where the Respondent diverted Complainant’s customers to his websites).

Hence, it may be presumed that Respondent has no rights or legitimate interests in either "BankOAmerica.com," "BankofAmerca.com" or "BankFoAmerica.com" as a domain name. The Panel concludes that Complainant has established the elements of Policy ¶ 4(a)(ii).

The evidence indicates that Respondent did not register or begin using the subject domain names until November 2000 at the earliest – long after Complainant’s BANK OF AMERICA mark had acquired its fame. Without any preexisting rights in either "BankOAmerica," "BankofAmerca" or "BankFoAmerica" as a trademark, service mark, or trade name, it may be assumed that Respondent adopted, registered, and is using each of the subject domain names because of the fame and goodwill associated with Complainant’s BANK OF AMERICA mark. This is evidence of bad faith registration of the domain names. See Dr. Karl Albrecht v. Eric Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) ("The Respondent intentionally registered a domain name which uses the Complainant’s name. There is no reasonable possibility that the name karlalbrecht.com was selected at random. There may be circumstances where such a registration could be done in good faith, but absent such evidence, the Panel can only conclude that the registration was done in bad faith.")

Each of the subject domain names is being used to link to an active commercial website. As such, Respondent registered the domain names to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the website. Policy ¶ 4(b)(iv). See Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the Respondent violated Policy ¶ 4(b)(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site).

Further, Respondent’s registrations of misspellings and "typos" of other famous marks also provide strong evidence of Respondent’s bad faith. See e.g., Electronics Boutique Holdings Corp. v. Zuccarini, 56 U.S.P.Q.2d 1705, 1710-11 (E.D. Pa. 2000) (finding a bad faith intent to profit from similar domain name misspellings to be "abundantly clear").

Based on the totality of circumstances as described above, the Panel concludes that the elements of Policy ¶ 4(a)(iii) have been established.

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain names, "BankOAmerica.com," "BankofAmerca.com," and "BankFoAmerica.com" be transferred from the Respondent to the Complainant.