New Generation Market, SIA v. mick freeman / ibanwallets
Claim Number: FA2006001901474
Complainant is New Generation Market, SIA (“Complainant”), represented by Joseph P Croucher, United Kingdom. Respondent is mick freeman / ibanwallets (“Respondent”), Cyprus.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ibanwallets.com>, registered with NAMECHEAP INC; NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 23, 2020; the Forum received payment on July 6, 2020.
On July 1, 2020, NAMECHEAP INC; NameCheap, Inc. confirmed by e-mail to the Forum that the <ibanwallets.com> domain name is registered with NAMECHEAP INC; NameCheap, Inc. and that Respondent is the current registrant of the name. NAMECHEAP INC; NameCheap, Inc. has verified that Respondent is bound by the NAMECHEAP INC; NameCheap, 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 July 8, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 2020 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@ibanwallets.com. Also on July 8, 2020, 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 July 30, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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 disputed domain name be cancelled.
A. Complainant
i) Complainant claims rights in the IBAN WALLET mark based upon registration with the European Union Intellectual Property Office (“EUIPO”) (e.g., Reg. No. 018163186, registered on May 22, 2020). The disputed domain name <ibanwallets.com> is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s IBAN WALLET mark and merely adds the letter “s” and the “.com” generic top-level domain (“gTLD”).
ii) Respondent does not have rights or legitimate interests in the disputed domain name. Complainant sent a cease and desist to the website’s registered address and received no response. Namecheap – the registrar – has also apparently contacted the disputed domain’s resolving website holder.
iii) Respondent registered and uses the disputed domain name in bad faith. The institution behind the disputed domain name performs a similar function to Complainant’s own website <ibanwallet.com>, and also utilizes the same format of email and financial promotion material. Respondent deliberately aligns their advertising content with Complainant’s own to promote a profile that appears to be the same, or at least an offshoot, of Complainant’s own.
B. Respondent
Respondent did not submit a response.
1. The disputed domain name was registered on May 15, 2020.
2. Complainant has established rights in the IBAN WALLET mark based upon registration with the European Union Intellectual Property Office (“EUIPO”) (e.g., Reg. No. 018163186, filed on September 12, 2019 and registered on May 22, 2020).
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the IBAN WALLET mark based upon its registration of the mark with the EUIPO (e.g., Reg. No. 018163186, filed on September 12, 2019 and registered May 22, 2020). Registration of a mark with the EUIPO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i)”). Complainant provides evidence of its registration of the IBAN WALLET mark with the EUIPO, therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s IBAN WALLET mark, simply adding the letter “s” and the “.com” gTLD. The addition of a single letter and a gTLD to a mark may not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Thus, the Panel finds that the disputed domain name is confusingly similar to the IBAN WALLET mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues Respondent does not have rights or legitimate interests in the disputed domain name because Complainant sent a cease and desist to the website of the disputed domain name and received no response. Namecheap – the registrar – has also apparently contacted the disputed domain’s resolving website holder.
However, the Panel notes that Complainant did not submit a single piece of evidence for its assertion. Therefore, the Panel finds that Complainant has failed to make out a prima facie case and it finds that Complainant has not satisfied the requirement of Policy ¶ 4(a)(ii).
Complainant argues that Respondent has registered and uses the disputed domain name in bad faith. The Panel notes that the disputed domain name (registered on May 15, 2020) predates the registration of Complainant’s first claimed rights in the IBAN WALLET mark registered on May 22, 2020. The Panel also notes that the filing date (September 12, 2019) of Complainant’s IBAN WALLET mark with the EUIPO predates the registration of the disputed domain name, and thus it finds that Complainant can prove registration of the disputed domain name per Policy ¶ 4(a)(iii).
Complaint argues that the institution behind the disputed domain name performs a similar function to Complainant’s own, and also utilizes the same format of email and financial promotion material. Respondent deliberately aligns their advertising content with Complainant’s own to promote a profile that appears to be the same, or at least an offshoot, of Complainant’s own.
However, Complainant did not submit a single piece of evidence for its assertion. As a result of the Panel’s checking the website of the disputed domain name, the Panel finds that the disputed domain name remains inactive.
Therefore, the Panel concludes that Complainant has not satisfied the requirement of Policy ¶ 4(a)(iii).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <ibanwallets.com> domain name REMAIN WITH Respondent.
Ho Hyun Nahm, Esq., Panelist
Dated: August 12, 2020
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