U.S. Bank N.A. v. XianCheng
Claim Number: FA2308002057948
Complainant is U.S. Bank N.A. (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is XianCheng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travelbank.agency>, registered with Sav.com, LLC.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on August 17, 2023; Forum received payment on August 17, 2023.
On August 17, 2023, Sav.com, LLC confirmed by e-mail to Forum that the <travelbank.agency> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.com, LLC 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 August 21, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 11, 2023 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@travelbank.agency. Also on August 21, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that it has roots dating back to 1963 as national bank charter number 24. Throughout the years, Complainant has managed a wide range of banking products and services. In 2021, Complainant acquired TravelBank, an all-in-one expense and travel management solution. In that acquisition, Complainant acquired the TRAVELBANK trademark. Complainant’s TravelBank division offers a wide range of travel management solutions. Those solutions include management of expenses, travel, in-house customer support, rewards and marketplaces that make travel easier. The fully integrated system offered under the TRAVELBANK brand comes from award winning technology. Complainant asserts rights in the TRAVELBANK mark through its registration in the United States in 2016.
Complainant alleges that the disputed domain name is identical to its TRAVELBANK mark as it incorporates the mark in its entirety and merely adds the “.agency” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no legitimate rights or interests in the disputed domain name. Complainant has not authorized Respondent to use its mark and Respondent is not commonly known by the disputed domain name. Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services, or for a legitimate noncommercial or fair use. Instead, the resolving website mimicked Complainant’s website in such a way that consumers viewing the resolving website would be likely to believe that it was one of Complainant’s legitimate websites. Respondent engaged Complainant’s customers over text messaging applications, first referring to Complainant’s legitimate website <travelbank.com>, and then urging users to register on Respondent’s website <travelbank.agency> in order to phish for users’ personal information.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith by using it to confuse internet users into believing that Respondent’s domain name is affiliated with Complainant in furtherance of a phishing scheme. Respondent had actual knowledge of Complainant’s rights in the TRAVELBANK mark as shown by its use of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TRAVELBANK and uses it to provide travel management solutions.
Complainant’s rights in its mark date back to 2016.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website mimicked Complainant’s legitimate website and was used in furtherance of phishing.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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”).
The disputed domain name incorporates Complainant’s TRAVELBANK mark in its entirety and merely adds the “.agency” generic top-level domain (“gTLD”). This does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See Dell Inc. v. Protection of Private Person, FA1606001681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs”); see also Abbott Labs v. Whois Svc., FA0903001254682 (Forum May 14, 2009) (“the addition of a gTLD is irrelevant in distinguishing a disputed domain name from a registered mark”); see also Twitter, Inc. v. Jie, FA2011001919786 (Forum Dec. 9, 2020) (“The Panel considers the disputed domain name [<twitter.luxe>] to be identical to Complainant’s registered [TWITTER] trademark”). Thus the Panel finds that the disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies the registrant as “XianCheng”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Both the disputed domain name itself, and the content of the resolving website, falsely suggest that they are associated with Complainant. That is not a fair or legitimate use of the disputed domain name. Indeed, according to paragraph 2.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner …”. See 201 Folsom Option JV, L.P. and 201 Folsom Acquisition, L.P. v. John Kirkpatrick, D2014-1359 (WIPO, Oct. 28, 2014); see also Qualcomm Incorporated v. Qualcomm Tech, FA 2004546 (Forum Aug. 17, 2022) (finding that a resolving website that “mimics Complainant’s website, display[s] Complainant’s mark, logo, and tagline; and it displays links to Complainant’s own social media platforms” is neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use of the disputed domain name). Consequently the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Further, Respondent engaged Complainant’s customers over text messaging applications, first referring to Complainant’s legitimate website <travelbank.com>, and then urging users to register on Respondent’s website <travelbank.agency> in order to phish for users’ personal information. Previous panels have determined that a respondent’s attempt to pass itself off as a complainant, or a respondent’s attempt to phish, are not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (concluding 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). Thus the Panel finds, on this ground also, that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website mimicked Complainant’s legitimate website and was used in furtherance of phishing. This can evince bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant’s mark to fraudulently induce transfer of credit and personal identification information); see also Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers). The Panel therefore finds that Respondent registered and used the disputed domain in bad faith per Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website mimicked Complainant’s legitimate website and Respondent referred to Complainant’s legitimate website in text messages. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith registration and use under 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 <travelbank.agency> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 13, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page