Regions Bank v. xdl jay / Xtemplar
Claim Number: FA2206002001843
Complainant is Regions Bank (“Complainant”), represented by Rachel Hofstatter of Honigman LLP, District of Columbia, USA. Respondent is xdl jay / Xtemplar (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <regionbank.org>, registered with 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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 24, 2022; the Forum received payment on June 24, 2022.
On June 25, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <regionbank.org> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the 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 5, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 25, 2022 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@regionbank.org. Also on July 5, 2022, 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 August 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the REGIONS and REGIONS BANK service marks established by its ownership of its portfolio of registrations described below and its extensive use of the marks in its business as one of the largest consumer and commercial banks in the United States of America.
Complainant adds that it has established an extensive reputation and goodwill in the REGIONS and REGIONS BANK trademarks by use in its banking business operating approximately 1,300 banking offices and 2,000 automated teller machines (“ATMs”) across the South, Midwest, and Texas. Furthermore, Complainant adds that its reputation has been enhanced by being recognized with numerous business awards for its work.
Complainant adds that it owns many domain names for its REGIONS brand, including <regions.com> which is the address of Complainant’s website that is used to advertise its many banking services including its suite of credit card products for businesses and consumers, and where customers can access their personal accounts.
Complainant alleges that the disputed domain name <regionbank.org> is confusingly similar to Complainant’s REGIONS and REGIONS BANK service marks, as the second level domain name merely deletes the letter “s” from Complainant’s REGIONS BANK mark and adds a gTLD identifier.
Complainant adds that changing a term found within a mark from its plural form to its singular form constitutes a minor difference, incapable of distinguishing the marks. Cox Automotive Australia Pty, Ltd v. CarSales.com Limited / Matt Martin, WIPO Case DAU2017-0012 (WIPO June 29, 2017) (“[Respondent’s] conversion into a plural by the addition of “s” is simply too thin a reed to differentiate the disputed domain name from the Complainant’s trade mark”)
Moreover, Respondent’s incorporation of the top-level domain <.org> does not make the Respondent’s domain name distinctive. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
Complainant adds that Internet users who are misdirected to Respondent’s website will be confused and mistakenly believe that it is or is affiliated with or sponsored by Complainant.
Complainant next alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that Respondent has never been commonly known by the name “Region Bank”, nor has Respondent ever legitimately used any trademark or service mark similar to the second level domain name by which it may have come to be known.
Complainant adds that the WhoIs contact information provided does not indicate that Respondent has been commonly known by “Region Bank”.
Furthermore, Complainant asserts that it has no relationship with Respondent.
Referring to screen captures of the website to which the disputed domain name resolves that are exhibited in the annexes to the Complaint, Complainant submits that the exhibits show that Respondent’s website at <regionbank.org> purports to offer banking services under the business name “Region Bank,” which is displayed prominently in the upper-left corner. The homepage features links to a variety of banking related services, including “Checking & Savings,” “Loans,” “Credit Cards,” and “Investing.”
Complainant contends that such use of the disputed domain name by Respondent for a financial-related website is an infringement of Complainant’s REGIONS and REGIONS BANK registered service marks.
Complainant further contends that Respondent’s website at <regionbank.org> appears to be phony. The services it advertises do not appear to actually be obtainable through the website. For example, the “Checkings” page states, “Click ‘Continue & apply’ for Region Bank Total Checking account with direct deposit,” but no link is provided and clicking on the wording “Continue & apply” resolves to nowhere.
Furthermore, the exhibits show that the website to which the disputed domain name resolves also incorrectly markets services offered by Chase Bank.
Complainant adds that “Region Bank” also appears to be a fake entity. On the website, Respondent purports to be located in New York, yet Internet searches annexed to the Complaint show that the office address on the website is fictitious and the phone number listed identifies an area code for a phone number located in California.
Additionally, Complainant submits that there is no business registration for “Region Banker”, and “Region Bank” is not a federally insured bank. Thus, the website is using a phony address and phone number to advertise infringing and fraudulent services. Complainant submits that Respondent’s failure to provide an accurate phone number or complete address for the entity suggests that no such entity exists.
Further, Complainant adds that Respondent also uses the disputed domain name <regionbank.org> in an attempt to fraudulently gain access to customer login information. Respondent’s website offers a “Login” page that prompts users to enter their email address and password. Additionally, the website at <regionbank.org> requests extensive personal information to apply for a credit card, including the user’s account name and number along with a copy of the user’s passport.
Complainant submits that Respondent’s operation of the website <regionbank.org> under fraudulent pretext in an attempt to collect user data, including personal details and passport details cannot be considered a bona fide offering of services or a noncommercial or fair use.
Complainant adds that Respondent’s website at <regionbank.org> appears to be under development and contains several pages with dummy text. For example, Respondent has posted an article titled “Top Listed Business Development Program” with the content of the article appearing in dummy text that translates into English statements without out any sense. Complainant submits that such use does not convey any rights to the Respondent.
Complainant next alleges that Respondent registered and is using the disputed domain name in bad faith, arguing that Respondent’s registration and use of the disputed domain name was with full knowledge of Complainant’s prior use of, rights in and goodwill associated with associated with the REGIONS and REGIONS BANK names and marks.
Complainant further argues that by registering the disputed domain name that is confusingly similar to Complainant’s REGIONS and REGIONS BANK marks and corporate name REGIONS BANK, Respondent has intentionally misspelled Complainant’s REGIONS and REGIONS BANK marks by deleting the letter “s” and converting REGIONS to its singular form.
Complainant adds that it has prior rights and has used and registered the REGIONS and REGIONS BANK marks prior to the registration of the disputed domain name and so Respondent had constructive notice of Complainant’s rights in the REGIONS and REGIONS BANK marks when the disputed domain name was chosen and registered.
Complainant further contends that Respondent is operating a fraudulent website in an attempt to collect personal information from users as described above.
Furthermore, Complainant submits that Respondent’s advertising of services that compete directly with those of Complainant demonstrates Respondent’s knowledge of Complainant’s rights in the REGIONS and REGIONS BANK marks and constitutes use in bad faith the purposes of the Policy.
An annex to the Complaint contains a copy letter sent by Complainant’s attorneys on February 4, 2022, notifying Respondent that its registration and use of the disputed domain name violates Complainant’s rights in its REGIONS and REGIONS BANK marks. Complainant avers that no response has been received to the letter and Respondent continues to use the disputed domain name to link to services that compete with those of Complainant, despite having actual knowledge that its use of the disputed domain name in this manner infringes Complainant’s exclusive rights to the REGIONS and REGIONS BANK marks for banking and related financial services.
Complainant further argues that Respondent appears to have provided incomplete and fraudulent WhoIs in an attempt to conceal its true identity. Complainant specifically submits that Respondent has provided what appears to be phony contact details in the WhoIs records. The WhoIs records list the city and state of Irving, Texas as Respondent’s street address but searches show that Respondent’s organization “Xtemplar” does not appear to exist in Irving, Texas.
Complainant adds that Respondent also uses what appears to be a fraudulent name because the email address in the WhoIs records appears to be associated with an individual [The person’s name is provided in the Complaint but the Panel has decided that it is not necessary and perhaps inappropriate to include the name in this Decision]. See Philip Morris USA Inc. v. Jack Sparrow, WIPO Case D2016-2220 (“The Panel may draw negative inferences against the Respondent from fraudulent WhoIs information.”)
Lastly, Complainant submits that in the circumstances of this case, Respondent’s use of a privacy shield to register the disputed domain name is further evidence of bad faith. See Phoenix Niesley-Lindgren Watt v. Contact Privacy Inc., Customer 0150049249, FA 1800231 (Forum Sept. 6. 2018) (“In a commercial context, using a WHOIS privacy service raises the rebuttable presumption of bad faith registration and use of the disputed domain name. An honest merchant in the marketplace does not generally try to conceal the merchant’s identity. Good faith requires honesty in fact. Respondent did nothing to rebut this presumption of bad faith. Therefore, the Panel will find bad faith registration and use for this reason.”).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a bank based in the United States and owns and uses the following United States registered trademarks:
· United States registered service mark REGIONS, registration number 1,881,600, registered on the Principal Register on February 28, 1995, for “banking services” in international class 36;
· United States registered service mark REGIONS (stylized), registration number 1,914,267, registered on the Principal Register on August 22, 1995, for “banking services” in international class 36;
· United States registered service mark REGIONS (and delta design), registration number 3,406,071, registered on the Principal Register on April 1, 2008, for “banking services” in international class 36;
· United States registered service mark REGIONS (and delta design), registration number 3,406,072, registered on the Principal Register on April 1, 2008, for “banking services” in international class 36;
· United States registered service mark REGIONS (and delta design), registration number 3,505,814, registered on the Principal Register on September 23, 2008, for “banking services” in international class 36;
· United States registered service mark REGIONSBANK, registration number 1,918,496, registered on the Principal Register on September 12, 1995, for “banking services” in international class 42;
· United States registered service mark REGIONS BANK, registration number 3,282,179, registered on the Principal Register on August 21, 2007, for “banking services” in international class 36;
· United States registered service mark REGIONS BANK (and delta design), registration number 5,800,356, registered on the Principal Register on July 9, 2019, for “banking services” in international class 36.
Complainant also has an established Internet presence and owns numerous Internet domain names including <regions.com> which it uses as the address of its main website, where Complainant advertises its banking services including a facility for its customers can log into their personal accounts.
The disputed domain name was registered on January 27, 2022, and resolves to a website that displays the <regionbank.org> domain name in large font with numerous links for financial services, some of which display the REGIONS name and mark, including “Regions Online Banking Login” and “Regions Bank.”
There is no information available about Respondent except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the request by the Forum for confirmation of the registration details for the disputed domain name.
The Registrar confirmed that Respondent, whose name is redacted on the published WhoIs, is the registrant 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 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 has provided uncontested evidence to prove that on the balance of probabilities it has rights in the REGIONS and REGIONS BANK service marks, established by its ownership of its portfolio of service mark registrations described above and extensive use of the mark in its banking business operating approximately 1,300 banking offices and 2,000 automated teller machines across the South, Midwest, and Texas, and which has an established Internet presence.
The disputed domain name <regionbank.org> contains each of Complainant’s REGIONS and REGIONS BANK marks in its entirety, albeit omitting the letter “s” in each case, in combination with the generic Top Level Domain (“gTLD”) extension <.org>.
Complainant’s REGIONS mark is the dominant and only distinctive element in the disputed domain name and the omission of the letter “s” is likely to be unnoticed in the course of use of the disputed domain name and the omission of the letter does not prevent a finding that the disputed domain name is confusingly similar to the REGIONS and REGIONS BANK marks. As Complainant quotes “it is simply too thin a reed to differentiate the disputed domain name”
The gTLD extension <.org> would be considered by Internet users as a necessary technical requirement for a domain name and therefore does not prevent a finding of confusing similarity between the disputed domain name and Complainant’s REGIONS and REGIONS BANK marks.
This Panel finds therefore that the disputed domain name <regionbank.org> is confusingly similar to the REGIONS and REGIONS BANK marks in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights legitimate interests in the disputed domain name arguing that
· Respondent has never been commonly known by the name or mark REGION BANK, nor has Respondent ever legitimately used any trademark or service mark similar to the second level domain name by which it may have come to be known;
· the WhoIs contact information provided does not indicate that Respondent has been commonly known by “Region Bank”;
· Complainant has no relationship with Respondent.
· screen captures of the website to which the disputed domain name resolves that are exhibited in annexes to the Complaint, show that Respondent’s website at <regionbank.org> purports to offer banking services under the business name “Region Bank,” which is displayed prominently in the upper-left corner and the homepage features links to a variety of banking related services, including “Checking & Savings,” “Loans,” “Credit Cards,” and “Investing” and such use of the disputed domain name by Respondent for a financial-related website is an infringement of Complainant’s REGIONS and REGIONS BANK service marks;
· Respondent’s website at <regionbank.org> appears to be phony because the services it advertises do not appear to actually be obtainable through the website. For example, the “Checkings” page states, “Click ‘Continue & apply’ for Region Bank Total Checking account with direct deposit,” but no link is provided and clicking on the wording “Continue & apply” resolves to nowhere;
· the website to which the disputed domain name resolves also incorrectly markets services offered by Chase Bank;
· on said website, furthermore, Respondent claims to operate as “Region Bank” which also appears to be a fake entity as Respondent purports to be located in New York, while Internet searches annexed to the Complaint show that the office address on the website is fictitious and the phone number listed identifies an area code for a phone number located in California;
· there is no business registration for “Region Banker”, and “Region Bank” is not a federally insured bank;
· furthermore, Respondent is using the disputed domain name <regionbank.org> in an attempt to fraudulently gain access to customer login information because Respondent’s website offers a “Login” page that prompts users to enter their email address and password and additionally requests extensive personal information to apply for a credit card, including the user’s account name and number along with a copy of the user’s passport;
· such use of the disputed domain name to establish a website at <regionbank.org> under fraudulent pretext in an attempt to collect user data, including personal details and passport details cannot be considered a bona fide offering of services or a noncommercial or fair use.
· furthermore, Respondent’s website at <regionbank.org> appears to be under development and contains several pages with dummy text. For example, Respondent has posted an article titled “Top Listed Business Development Program” with the content of the article in nonsense text.
It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.
Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
The Complainant has adduced uncontested evidence that it had used the REGIONS and REGIONS BANK trademarks in its banking business for many years prior to the date on which the disputed domain name was registered on January 27, 2022. The earliest service mark registrations for the two marks which are relied upon by Complainant, each date back to 1995.
The service mark REGIONS is distinctive and given the extent of the Complainant’s prior rights and reputation, it is implausible that the registrant chose and registered the disputed domain name without knowledge of Complainant, its rights and its mark.
Furthermore, it is implausible that the registrant of the disputed domain name did not become aware of Complainant, its name, and banking business which is available online, and Complainant’s preexisting <regions.com> domain name registration when the disputed domain name was chosen and registered.
The misspelling of Complainant’s mark was most probably an act of typosquatting at the time of registration.
On the balance of probabilities therefore, the disputed domain name was chosen and registered therefore in an act of typosquatting, in order to take predatory advantage of Complainant’s goodwill and reputation and to create confusion in the minds of the public using the Internet.
In an exceptionally well-researched, and well-presented, Complaint, Complainant has adduced convincing evidence in the form of screenshots, that on the website to which the disputed domain name resolves, Respondent is using the disputed domain name purporting to offer banking services while taking advantage of Complainant’s reputation in the REGIONS and REGIONS BANK marks. If Respondent is in fact offering genuine banking services, which is most improbable, such competing use of the disputed domain name would in itself, prove sufficient to find that the disputed domain name is being used in bad faith.
Such intentional use of the disputed domain name that is confusingly similar to Complainant’s marks in an attempt to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site and the coupons purported to be offered by the Respondent on his/her web site constitutes use of the disputed domain name in bad faith for the purposes of the Policy.
In the present case, the evidence proves that on the balance of probabilities the services that Respondent purports to offer and the information on Respondent’s website are a sham. There is no record of a “Region Bank”, the website is incomplete with nonsense text in parts, Respondent has provided a false address and false contact details for the purported “Region Bank”, and worryingly the website invites Internet users to input personal data including passport and pin number information. Taken together these details prove that, on the balance of probabilities, the disputed domain name is being used in bad faith, and the indications are that it is being used for sinister purposes.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <regionbank.org> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman
Panelist
Dated: August 2, 2022
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