Bank of America Corporation v. [Registrant]
Claim Number: FA1803001777702
Complainant is Bank of America Corporation (“Complainant”), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is [Registrant] (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bamlventurefunds.com>, registered with 1&1 Internet SE.
The undersigned certifies that he 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 March 19, 2018; the Forum received payment on March 19, 2018.
On March 22, 2018, 1&1 Internet SE confirmed by e-mail to the Forum that the <bamlventurefunds.com> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 March 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2018 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@bamlventurefunds.com. Also on March 29, 2018, 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 April 23, 2018, 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, Bank of America Corporation, is one of the world’s largest financial institutions, providing banking, investment, and wealth management services. Complainant uses its BOFAML mark to promote its products and services and established rights in the mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,036,776, registered Oct. 11, 2011). See Compl. Ex. R. Respondent’s <bamlventurefunds.com> domain name is confusingly similar to Complainant’s mark because it appends the descriptive terms “venture” and “funds” and the generic top-level domain (“gTLD”) “.com” to an abbreviated version of Complainant’s BOFAML mark.
Respondent does not have rights or legitimate interests in the <bamlventurefunds.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its BOFAML mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “Registrant” as the registrant. See Amend. Compl. Ex. Z. Respondent is not using the <bamlventurefunds.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant and conduct a fraudulent email phishing scheme. See Compl. Exs. X & Y.
Respondent registered and is using the <bamlventurefunds.com> domain name in bad faith. Respondent is using the domain name to create confusion with Complainant’s mark for Respondent’s commercial gain. Respondent likely financially benefits by fraudulently obtaining Internet users’ personal and financial information. See Compl. Exs. X & Y. Further, due to the fame of Complainant’s BOFAML mark, Respondent registered the <bamlventurefunds.com> domain name with full knowledge of Complainant’s rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name, <bamlventurefunds.com>, on April 10, 2015.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that 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(f), 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 (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 Panel finds that the disputed domain name, <bamlventurefunds.com>, is confusingly similar to Complainant’s valid and subsisting trademark, BOFAML. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by appending the descriptive terms “venture” and “funds” and the generic top-level domain (“gTLD”) “.com” to an abbreviated version of Complainant’s BOFAML mark. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent apparently uses the domain name to pass off as Complainant and conduct a fraudulent email phishing scheme. See Compl. Exs. X & Y.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent registered and is using the disputed domain name bad faith by creating confusion with Complainant’s mark for Respondent’s commercial gain. Use of a domain name to cause confusion as to the source, sponsorship, affiliation or endorsement therein for commercial gain may be evidence of bad faith registration and use under Policy ¶4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Complainant contends that Respondent uses the domain name to pass off as Complainant’s employee in email correspondence. See Compl. Ex. Y. Complainant claims that Respondent likely profits by obtaining email recipients’ personal financial information through a fraudulent wire transfer form attached to the email. See Compl. Ex. X. As such, the Panel finds that Respondent used the domain name to create confusion between the BOFAML mark and the disputed domain name for Respondent’s commercial gain in bad faith pursuant to Policy ¶4(b)(iv).
Further, Complainant alleges that Respondent registered the <bamlventurefunds.com> domain name with actual knowledge of Complainant’s prior rights in and to the mark. Here, Complainant contends that its mark is famous because Complainant is the largest brokerage company in the world and has engaged in global advertising campaigns using the BOFAML mark and the BAML abbreviation. See Compl. Exs. M-O. Therefore, due to the fame of Complainant’s mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s rights when the disputed domain name was registered and subsequently used.
As such, the Panel finds 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 <bamlventurefunds.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: April 26, 2018
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