The Standard Bank of South Africa Limited v. Brian White
Claim Number: FA1603001663527
Complainant is The Standard Bank of South Africa Limited ("Complainant"), represented by Daniel Greenberg of Lexsynergy Limited, United Kingdom. Respondent is Brian White ("Respondent"), Ghana.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <stanbicforeignactivities.com>, registered with eNom, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 2, 2016; the Forum received payment on March 2, 2016.
On March 2, 2016, eNom, Inc. confirmed by email to the Forum that the <stanbicforeignactivities.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 March 4, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 24, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@stanbicforeignactivities.com. Also on March 4, 2016, the Written Notice of the Complaint, notifying Respondent of the email 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 March 30, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is one of the largest banks in South Africa. Complainant has more than 1,000 branches in 20 African countries, and has a presence in 12 other countries. Complainant trades under the name STANBIC BANK in Botswana, Ghana, Tanzania, Uganda, Zambia and Zimbabwe. Complainant claims trademark rights in STANBIC, STANBIC BANK, and STANBIC IBTC by virtue of trademark registrations in South Africa, Ghana, and other jurisdictions, and at common law based upon Complainant's use of the marks.
The disputed domain name <stanbicforeignactivities.com> was registered through a privacy service in June 2015, concealing the registrant's identity. The domain name resolves to a bare directory page containing links to two image files, both of which are banners that contain the text "Stanbic IBTC Bank PLC A member of Standard Bank Group." Complainant states that it has no association with Respondent and has never authorized or licensed Respondent to use its marks, and alleges that Respondent has never been commonly known by the domain name. Complainant asserts that Respondent registered the domain name to attract and profit from Internet users seeking Complainant through a phishing scheme, attempting to gain access to sensitive information by masquerading as Complainant.
On the above grounds Complainant contends that the disputed domain name <stanbicforeignactivities.com> is confusingly similar to its STANBIC, STANBIC BANK, and STANBIC IBTC marks; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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 (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.").
Identical and/or Confusingly Similar
The disputed domain name corresponds to Complainant's STANBIC mark, adding the generic term "foreign activities" (minus the space) and the ".com" top-level domain. These additions do not diminish the similarity between the domain name and Complainant's mark. See, e.g., Standard Bank of South Africa Ltd. v. Michelle Zimmerman, FA 1547346 (Nat. Arb. Forum Apr. 23, 2014) (finding <stanbiconline.com> confusingly similar to STANBIC); Capital One Financial Corp. v. CAPO OFFSHORE / capitaloneoffshore, FA 1599896 (Nat. Arb. Forum Feb. 26, 2015) (finding <capitaloneoffshore.com> confusingly similar to CAPITAL ONE); National Westminster Bank plc v. NOLDC, Inc., FA 853697 (Nat. Arb. Forum Jan. 5, 2007) (finding <natwestbank-international.com> confusingly similar to NATWEST and NATWEST BANKLINE). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and Respondent does not appear to have made any active use of the domain name. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. See, e.g., Synovus Financial Corp. v. Sue Famer, FA 1638660 (Forum Oct. 21, 2015) (finding lack of rights or legitimate interests in similar circumstances). Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Paragraph 4(b) of the Policy sets forth the following circumstances that serve as evidence of bad faith:
(1) the domain name was registered primarily for the purpose of profiting from the sale or transfer to Complainant or a competitor thereof;
(2) the domain name was registered to prevent Complainant from reflecting its mark in a corresponding domain name, by one who has engaged in a pattern of such conduct;
(3) the domain name was registered primarily for the purpose of disrupting the business of a competitor; or
(4) the domain name has been used intentionally to attract, for commercial gain, Internet users to Respondent's website by creating a likelihood of confusion with Complainant's mark.
These instances set forth in paragraph 4(b) are illustrative rather than exhaustive, and bad faith may be found based upon other circumstances in appropriate cases. Synovus Financial Corp., supra. Furthermore, a domain name may be so closely connected with a well-known trademark that its very use suggests opportunistic bad faith. Id. Registering a domain name through a privacy service to conceal the registrant's identity, though not dispositive, may also be indicative of bad faith. See Glen Raven, Inc. v. Custom Shade Sails, FA 1629517 (Forum Aug. 19, 2015).
Respondent registered the disputed domain name through a privacy service and does not appear to have made any active use of the name. In the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's mark, most likely either by selling the domain name or by using it to attract Internet users seeking Complainant, possibly as part of a phishing scheme or for other illegitimate purposes, and that Respondent is maintaining the domain name for that purpose. The Panel therefore finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <stanbicforeignactivities.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 31, 2016
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