Capital One Financial Corp. v. Bin Zhenhua
Claim Number: FA1402001542171
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Bin Zhenhua (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <360bankonline.com>, <360banl.com>, <360bnk.com>, <www360bank.com>, and <wwwbank360.com>, registered with Domain.Com, Llc.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 4, 2014; the National Arbitration Forum received payment on February 4, 2014.
On February 4, 2014, Domain.Com, Llc confirmed by e-mail to the National Arbitration Forum that the <360bankonline.com>, <360banl.com>, <360bnk.com>, <www360bank.com>, and <wwwbank360.com> domain names are registered with Domain.Com, Llc and that Respondent is the current registrant of the names. Domain.Com, Llc has verified that Respondent is bound by the Domain.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 February 21, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 2014 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@360bankonline.com, postmaster@360banl.com, postmaster@360bnk.com, postmaster@www360bank.com, and postmaster@wwwbank360.com. Also on February 21, 2014, 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.
A timely Response was received and determined to be complete on March 13, 2014.
On March 18, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant, either directly or via one of its wholly-owned subsidiaries, owns numerous trademark applications or registrations for 360, SPARK, LIMITLESS, and variations thereof, all over the world and in the United States.
For example, as indicated in the chart below, Complainant owns registrations and applications in the United States for the following marks. Complainant provides banking and financial services under these registrations.
Trademark Application No./Registration No.
CAPITALONE and 360 Design 4,404,709
360 CHECKING and Design 4,385,555
360 Savings and Design 4,385,556
360 SAVINGS 4,385,499
360 CHECKING 4,389,507
CAPITAL ONE 360 4,401,562
360 REWARDS CHECKING 85/718,343
360 INTEREST CHECKING 85/718,401
ACCESS 360 4,265,676
BANK 360 3,715,176
BANK 360 and Design 3,715,177
CHANGE BANKING FOR GOOD 86/074,399
CHANGING BANKING FOR GOOD 85/965,556
CAPITALONE BANK and Design 3,993,433
CAPITALONE BANK and Design 3,993,436
BANK IT and Design 3,908,178
BANK IT 3,845,934
CAPITAL ONE BANK AT WORK 3,702,579
CAPITAL ONE BANK 3,419,972
SPARK BUSINESS BASIC CHECKING 86/009,192
SPARK BUSINESS UNLIMITED CHECKING 85/958,059
SPARK BUSINESS LIMITLESS CHECKING 85/778,109
SPARK BUSINESS CASHBACK CHECKING 85/778,124
SPARK BUSINESS INTEREST CHECKING 85/778,143
SPARK 100 85/967,250
SPARK DEPOSIT 85/967,260
SPARK PRODEPOSIT 85/938,079
SPARK PAY 4,412,228
SPARK BUSINESS 85/683,062
SPARK (stylized) 4,184,379
SPARK 4,172,257
LIMITLESS 85/928,989
LIMITLESS 85/927,963
These registrations establish Complainant’s rights to the 360, SPARK, and LIMITLESS marks under ¶4(a)(i) of ICANN’s Uniform Domain Dispute Resolution Policy (the “Policy”). See Expedia, Inc. v. Tan, FA991075 (Nat. Arb. Forum June 29, 2007) (“as the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶4(a)(i).”); Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)).
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds: UDRP Rule 3(b)(ix).
[a.] Complainant has legitimate rights to the 360, SPARK, and LIMITLESS marks, and variations thereof, and the disputed domain names are identical or confusingly similar to Complainant’s trademarks. UDRP Policy ¶4(a)(i). These rights exist regardless of where the Respondent resides. See Capital One Fin. Corp. v. Zhichao Yang, FA 1473336 (Nat. Arb. Forum Jan. 9, 2013) (citing Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum April 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction)); see also Capital One Fin. Corp. v. Paydayloanz.com, FA463493 (Nat. Arb. Forum Oct. 22, 2012) (concluding that Complainant has “secured rights in its CAPITAL ONE mark through its various global trademark registrations.”); see also Capital One Fin. Corp. v. MGA Enter. Ltd., FA 467312 (Nat. Arb. Forum Dec. 10, 2012) (finding that “Complainant has rights in the CAPITAL ONE trademark under Policy ¶4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO….[t]his is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction other than that of Complainant’s residence or place of business.”); see also Capital One Fin. Corp. v. William/ William Boggs, FA 482996 (Nat. Arb. Forum March 12, 2013) (finding that the “domain names are confusingly similar to the CAPITAL ONE 360 marks in which Complainant has established trademark rights” and also finding that “Complainant has acquired common law or unregistered trademark rights in the family of 360 marks.” Additionally, the Panel “Ordered that the … <360sid.com>, <360sie.com>, [and] <360side.com>…domain names be transferred from Respondent to Complainant.”). UDRP Policy ¶4(a)(i).
Complainant, Capital One Financial Corp., is a major financial institution headquartered in McLean, Virginia. Capital One was founded in 1988 and helped pioneer the mass marketing of credit cards in the early 1990s. Complainant offers a broad spectrum of financial products and services to consumers, small businesses and commercial clients. Complainant has consistently used its family of trademarks to promote its goods and services since its inception.
Respondent’s disputed domain names are confusingly similar to Complainant’s trademarks because Respondent’s domain names are identical to Complainant’s mark or are simple misspellings or typos an internet user might make when typing in Complainant’s mark. Common misspellings and typos of Complainant’s mark does not sufficiently distinguish the disputed domain names from Complainant’s marks. Capital One Fin. Corp. v. Zhichao Yang, FA 1473336 (Nat. Arb. Forum Jan. 9, 2013) (citing Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks)); see Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant); see also Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum April 28, 2003) (finding that the respondent's <marrriott.com> domain name was confusingly similar to the complainant's MARRIOTT mark). Moreover, additions of the generic term “online” and the generic top-level domain “.com” to a domain name are insufficient to distinguish a disputed domain name and a mark. See Wells Fargo & Co. v. Pinnacle Mgmt. Group, Inc., FA1272346 (Nat. Arb. Forum Aug. 18, 2009) (The addition of the terms “merchant services” which relate to Complainant’s business, does not distinguish the disputed domain name from Complainant’s mark. Moreover, the addition of the generic top-level domain (gTLD”) “.com” does not sufficiently distinguish the disputed domain name from Complainant’s mark as a top-level domain is a required element of all Internet domain names); see Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark); see Capital One Fin. Corp. v. Privacy Ltd. Disclosed Agent for YOLAPT, FA 487712 (Nat. Arb. Forum April 8, 2013) (finding that the addition of the term “creditcard,” and the top-level domain “.com” are insufficient to distinguish the respondent’s <capitalonecreditcard.com> domain from Complainant’s CAPITAL ONE mark); see Capital One Fin. Corp. v. Battles Capital Inv. Inc./ Mark Battles, FA 487817 (Nat. Arb. Forum April 4, 2013) (finding that Respondent merely combined two of Complainant’s trademarks and that the domain name <venturecapitalone.com> “is confusingly similar to Complainant’s CAPITAL ONE and VENTURE marks.”). UDRP Rule 3(b)(ix)(1); UDRP Policy ¶4(a)(i).
[b.] The Respondent should be considered as having no rights or legitimate interests in respect of the domain names that are the subject to this Complaint. UDRP Rule 3(b)(ix)(2); UDRP Policy ¶4(a)(ii).
Respondent is not commonly known by the disputed domain names. The WHOIS information for the disputed domain names does not reflect that Respondent is commonly known by the disputed domain names. Complainant has never authorized Respondent to use its trademarks, much less use the marks as domain names, and Respondent is not a licensee of Complainant. Such evidence is sufficient to establish a respondent’s lack of rights to the disputed domain names. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006 (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see Capital One Fin. Corp. v. PPA Media Serv. / Ryan G. Foo, FA 485206 (Nat. Arb. Forum April 1, 2013) (concluding that “Respondent has not been commonly known by the disputed domain name [<capitalonemascotchallenge.com>] so as to have demonstrated that it has rights to or legitimate interests in the domain name within the contemplation of Policy ¶4(c)(ii).”).
Respondent’s lack of rights or legitimate interests in the disputed domain names is further evidenced by Respondent’s failure to use the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. All of Respondent’s disputed domain names display a search engine and “related searches,” “sponsored listings,” or both. Specifically, Respondent’s websites provide links to other financial institutions, including some of Complainant’s competitors. One reaches these pages by simply typing in the name of one of Complainant’s competitors, or by clicking on any of the “sponsored listings” links depicted on the page. Such actions are sufficient to establish that Respondent’s actions are not in connection with a bona fide offering of goods or services. See Expedia, Inc. v. Compaid, FA520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial use or fair use pursuant to Policy ¶4(c)(iii)); see Capital One Fin. Corp. v. Privacy Ltd. Disclosed Agent for YOLAPT, FA 487712 (Nat. Arb. Forum April 8, 2013) (finding that Respondent’s use of the <capitalonecreditcard.com> domain name to present site visitors with a variety of links to third parties “is neither a Policy ¶4(c)(i) bona fide offering of goods or services, nor a Policy ¶4(c)(iii) legitimate noncommercial or fair use.”); see Capital One Fin. Corp. v. DCH, FA 487835 (Nat. Arb. Forum April 9, 2013) (finding that the use of “a disputed domain name solely to display competing hyperlinks does not demonstrate a bona fide offering or a legitimate noncommercial or fair use.”).
Additionally, Respondent’s registration of nine domain names using either Complainant’s mark in connection with a common misspelling of a generic term or a common misspelling of Complainant’s mark constitutes typosquatting, the intentional registration of common misspellings of another’s mark. Typosquatting is evidence in and of itself that Respondent lacks rights or legitimate interests in the disputed domain names under UDRP Policy ¶4(a)(ii). See Capital One Fin. Corp. v. Zhichao Yang, FA 1473336 (Nat. Arb. Forum Jan. 9, 2013) (“[T]yposquatting . . . is additional evidence that Respondent lacks rights or legitimate interests in the disputed domain names under Policy ¶4(a)(ii).”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
[c.] The disputed domain names should be considered as having been registered and being used in bad faith. UDRP Rule 3(b)(ix)(3); UDRP Policy ¶4(a)(iii).
Respondent is using the disputed domain names to display commercial search engines and sponsored links to third party websites, some of which are owned by Complainant’s competitors. This use results in a disruption of Complainant’s business through the confusion caused by the similarity between Complainant’s marks and the disputed domain names. Respondent is benefiting from the valuable goodwill that Complainant has established in its marks and such actions are sufficient to establish the bad faith requirement. Capital One Fin. Corp. v. Zhichao Yang, FA 1473336 (Nat. Arb. Forum Jan. 9, 2013) (“[U]se of a disputed domain name to operate commercial search engines constitutes a bad faith disruption of a complainant’s business.”); see Spark Networks PLC v. Hay Wallshein, FA 1032203 (Nat. Arb. Forum Aug. 20, 2007) (finding that the respondent engaged in bad faith, primarily for the purpose of disrupting Complainant’s business pursuant to Policy ¶4(b)(iii) by displaying sponsored links on a parked webpage); see Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to products of the complainant and to complainant’s competitors, as well as diverting Internet users to several other domain names.)
Moreover, Respondent’s domain names each take advantage of a common misspelling or typo for Complainant’s marks or a generic term used in connection with Complainant’s marks. Respondent’s registration and use of typosquatted versions of Complainant’s mark is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii). Capital One Fin.l Corp. v. Zhichao Yang, FA 1473336 (Nat. Arb. Forum Jan. 9, 2013) (“Respondent’s intentional misspelling of Complainant’s mark, typosquatting, is additional evidence of bad faith use and registration of the disputed domain names pursuant to Policy ¶4(a)(iii).”); see Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶(a)(iii)).
B. Respondent
Hello ,
Unfortunately, I was the respondent party to participate in the arbitration.
First of all I hope that this defense can Chinese as the main language, because I am a Chinese, not fluent in English reading and writing. As individuals no more able to bear the economic costs of translation.
As IT professionals engaged in banking operations services, in contact with a variety of front-end banking information for the development of China 's banks have a deep understanding. China is preparing to open a large-scale private banking business , and I seized this opportunity, registered numerous domain names associated with the bank , which contains the domain is arbitration . In China , " 360" , " 365" , " 123" , " Online ", etc. are very popular vocabulary words , I have no reason not to register 360 or online -related domain names.
Arbitration parties are capitalone makes me feel very surprised, because I read a lot of relevant information, in addition to about 360 capitalone360.com and I can not find any strong point 360bank information related domain names should be arbitration. I think there is a malicious party arbitration act, which is a great disrespect for personal domain name enthusiasts, please dismiss the arbitration, thank you!
(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.
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 Complainant prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(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.
Complainant is a major financial institution offering a broad spectrum of financial products and services to consumers, small businesses, and commercial clients. Complainant owns a number of United States Patent & Trademark Office (“USPTO”) registrations for marks incorporating the term “360,” including the BANK 360 mark (e.g., Reg. No. 3,715,176 registered November 24, 2009), under which it provides banking and financial services. USPTO registration is normally sufficient to confer rights in a mark under the Policy, even though the Respondent resides in a different country. See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration of the mark with the USPTO). Complainant need not prove it has superior rights to Respondent, but merely that Complainant has some rights. Based upon the evidence, Complainant has established its rights in the BANK 360 mark under Policy ¶4(a)(i). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum April 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant claims Respondent’s <360bankonline.com>, <360banl.com>, <360bnk.com>, <www360bank.com>, and <wwwbank360.com> domain names are confusingly similar to Complainant’s BANK 360 mark. The <360bankonline.com>, <360banl.com>, <360bnk.com>, and <www360bank.com> domain names invert the terms “BANK and “360” found in Complainant’s mark, with <360banl.com> and <360bnk.com> introducing a misspelling of “BANK.” <www360bank.com> and <wwwbank360.com> add the prefix “www” while <360bankonline.com> adds the generic term “online.” Each domain removes the space between terms in Complainant’s mark and affixes the generic top-level domain (“gTLD”) “.com,” none of which adequately distinguish the disputed domain names from Complainant’s marks. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum April 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶4(a)(i)). Respondent’s addition of the terms “online” and “www” do not adequately distinguish the disputed domain names from Complainant’s marks because they are descriptive and relate to Complaint’s business (or general website usage). See Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum April 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark); see also Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus the respondent 's <wwwmarieclaire.com> domain name is confusingly similar to the complainant's MARIE CLAIRE trademark). Respondent’s misspelling of the term “BANK” in <360banl.com> and <360bnk.com> does not adequately distinguish the disputed domain names from Complainant’s marks under the Policy. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks). Finally, the reversal of the terms “BANK” and “360” does not defeat Complainant’s claim of confusing similarity. See Reed Elsevier Props. Inc. v. Weekly Publishers, FA 151536 (Nat. Arb. Forum May 5, 2003) (“Inverting or transposing words in a trademark is not sufficient to avoid confusing similarity because the two words create the same commercial impression and meaning.”). Respondent’s <360bankonline.com>, <360banl.com>, <360bnk.com>, <www360bank.com>, and <wwwbank360.com> domain names are confusingly similar to Complainant’s BANK 360 mark within the meaning of Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case 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 has 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent is not commonly known by the disputed domain names. The WHOIS information for the disputed domain names does not suggest Respondent is commonly known by the disputed domain names. The WHOIS lists Respondent as “Bin Zhenhua.” Complainant never authorized Respondent to use its trademarks, much less use the marks as domain names. Respondent is not a licensee of Complainant. In light of Respondent’s failure to claim otherwise in its Response, the Panel finds Respondent is not commonly known as <360bankonline.com>, <360banl.com>, <360bnk.com>, <www360bank.com>, or <wwwbank360.com> within the meaning of Policy ¶4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant claims Respondent has failed to use the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Each of Respondent’s disputed domain names displays a search engine and “related searches,” “sponsored listings,” or both (meaning the disputed domain names are displaying dynamic parking pages). Respondent’s websites provide links to other financial institutions, including some of Complainant’s competitors (which is what one would expect an unmonitored dynamic parking page would do). In H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008), the panel found that, because the respondent’s disputed domain names resolved to a website featuring a series of advertising links to various third parties, many of whom offered products and services in direct competition with those offered under the complainant’s mark, the respondent was not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent has failed to use the <360bankonline.com>, <360banl.com>, <360bnk.com>, <www360bank.com>, and <wwwbank360.com> domains in connection with a Policy ¶4(c)(i) bona fide offering of goods or services or a Policy ¶4(c)(iii) legitimate noncommercial or fair use.
Complainant claims Respondent’s registration of domain names using either Complainant’s mark in connection with a generic term or a common misspelling of Complainant’s mark constitutes typosquatting. This Panel does not accept such a general assertion. The Policy does not prohibit all forms of typosquatting; it only prohibits some forms of typosquatting. Complainant must still make its argument under the Policy rather than relying upon conclusory assertions.
Respondent has presented no evidence of his demonstrable preparations to use the disputed domain names, even though they were all registered on July 11, 2013. This Panel is unconvinced of Respondent’s unsubstantiated plans to actually use the disputed domain names.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent’s use of the disputed domain names results in a disruption of Complainant’s business through the confusion caused by the similarity between Complainant’s mark and the disputed domain names. The website resolving from each of Respondent’s disputed domain names provides links to other financial institutions, including some of Complainant’s competitors. Such use of a disputed domain name supports a finding of bad faith under Policy ¶4(b)(iii), especially since Respondent is in the technology part of the banking business. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶4(b)(iii).”). This Panel is persuaded Respondent registered and uses the domains in bad faith pursuant to Policy ¶4(b)(iii).
Complainant claims Respondent’s registration and use of typosquatted versions of Complainant’s mark is sufficient evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii). Once again, this Panel is not convinced by this conclusory argument.
Given Respondent’s position within the banking world, this Panel believes it is inconceivable Respondent didn’t know about Complainant’s marks. A simple Google search reveals Complainant’s use of these marks (despite Respondent’s suggestion to the contrary). This Panel is convinced of Respondent’s actual bad faith registration and use of the disputed domain names under the penumbra of Policy ¶4(c).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <360bankonline.com>, <360banl.com>, <360bnk.com>, <www360bank.com>, and <wwwbank360.com> domain names be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, April 8, 2014
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page