Amegy Bank National Association v. Brad Beckerly / amegy
Claim Number: FA1501001600391
Complainant is Amegy Bank National Association (“Complainant”), represented by John H. Rees of Callister Nebeker & McCullough, Utah, USA. Respondent is Brad Beckerly / amegy (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amegy.us>, registered with Melbourne IT Ltd.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 16, 2015; the National Arbitration Forum received payment on January 16, 2015.
On January 20, 2015, Melbourne IT Ltd confirmed by e-mail to the National Arbitration Forum that the <amegy.us> domain name is registered with Melbourne IT Ltd and that Respondent is the current registrant of the name. Melbourne IT Ltd has verified that Respondent is bound by the Melbourne IT Ltd registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On January 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 2015 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@amegy.us. Also on January 21, 2015, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 16, 2015 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration 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
1. Complainant uses AMEGY to promote its banking and investment services business. The mark is registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,269,288, registered July 24, 2007). The <amegy.us> domain name is identical to the AMEGY mark because merely adding “.us” does not differentiate the domain name.
2. Respondent has no right or legitimate interest in the <amegy.us> domain name. First, Respondent is not commonly known by the <amegy.us> domain name and has no authority to use AMEGY in trade. Furthermore, Respondent allows registrar-parked content to appear on the domain name’s website.
3. Respondent has registered and is using the <amegy.us> domain name in bad faith. Respondent seeks to disrupt Complainant’s commercial endeavors. Respondent is trying to capitalize on the likelihood Internet users will confuse Complainant as a source or origin of the content viewable on the domain name’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Amegy Bank National Association, Houston, TX USA. Complainant owns domestic registrations for the mark AMEGY and related marks which it has used continuously since at least as early as 2005 in connection with its provision of banking and financial goods and services.
Respondent is Brad Beckerly / Amegy, Cape Coral FL, USA. Respondent’s registrar’s address is listed as Melbourne, Australia. Respondent registered the disputed domain name on or about November 10, 2014.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 (Nat. Arb. 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.”).
Complainant uses AMEGY to promote its banking and investment services business. The mark is registered with the USPTO (e.g., Reg. No. 3,269,288, registered July 24, 2007). Complainant believes that this registration is enough to show standing under Policy ¶ 4(a)(i). The Panel finds that Complainant’s USPTO registration is good evidence to show Complainant’s rights in the AMEGY mark pursuant to Policy ¶ 4(a)(i). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant asserts that the <amegy.us> domain name is identical to the AMEGY mark because merely adding “.us” does not differentiate the domain name. Prior panels have found that the addition of a ccTLD fails to distinguish a domain name from a protected mark. See CDW Computer Ctrs., Inc. v. The Joy Co., FA 114463 (Nat. Arb. Forum July 25, 2002) (finding that the addition of the ccTLD “.us” is inconsequential and does not defeat a claim of confusing similarity). The Panel here finds that the domain name is identical to the mark because the ccTLD “.us” does not distinguish the domain name in any way.
The Complainant has proven this element.
The Panel recognizes that 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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
This Panel finds no evidence that Respondent holds a trade or service mark identical to this domain name, as no indication of such a mark exists in this record. See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name).
Complainant argues that Respondent is not commonly known by the <amegy.us> domain name and has no authority to use AMEGY in trade. The Panel notes that “Brad Beckerly” is listed as the registrant of record for the disputed domain name. The Panel finds no evidence that presently provides a basis for finding Respondent to be commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under based on the WHOIS information and other evidence in the record).
Complainant argues that Respondent allows registrar-parked content to appear on the domain name’s website. The Panel notes the domain name currently has no active content beyond an “under construction” page. The Panel finds the lack of use of the domain name fails to suggest any Policy ¶¶ 4(c)(ii) or (iv) rights in the domain name. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services . . . and it is not a legitimate noncommercial or fair use.”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant asserts that Respondent is trying to capitalize on the likelihood Internet users will confuse Complainant as a source or origin of the content viewable on the domain name’s website. The Panel finds that while the domain name’s website is presently under construction, it can be inferred that this identical domain name is apt to cause confusion when the website is active, and the domain name may presently cause confusion as to whether or not Complainant has removed its own website content. See Phat Fashions, LLC v. Kruger, FA 96193 (Nat. Arb. Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the usTLD Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <amegy.us> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: March 2, 2015
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