Bryant Bank v. Bry rant
Claim Number: FA1901001827966
Complainant is Bryant Bank (“Complainant”), represented by Linda A. Friedman of Bradley Arant Boult Cummings LLP, Alabama, USA. Respondent is Bry rant (“Respondent”), Alabama, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bryantbank.online>, registered with NameSilo, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 31, 2019; the Forum received payment on January 31, 2019.
On January 31, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <bryantbank.online> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 26, 2019 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@bryantbank.online. Also on February 6, 2019, 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 February 28, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is regional bank headquartered in the US state of Alabama, and engaged in, among other things, online banking for its customers.
Complainant holds a registration for the BRYANT BANK service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,443,700, registered December 3, 2013.
Respondent registered the domain name <bryantbank.online> on or about January 11, 2019.
The domain name is confusingly similar to Complainant’s BRYANT BANK mark.
Respondent is not licensed or otherwise authorized to use Complainant’s BRYANT BANK mark.
Respondent has not been commonly known by the domain name.
Respondent does not use the domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, Respondent’s resolving webpage impersonates Complainant in order to phish for personal information and funds from Complainant’s Internet customers.
Respondent attempts to pass itself off online as Complainant in order to acquire commercial gain.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant’s rights in the BRYANT BANK mark prior to registration and use of the domain name.
Respondent registered or uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical and confusingly similar to a or service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the BRYANT BANK service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See, for example, Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum August 4, 2015) (finding that a UDRP complainant’s USPTO registrations for a mark sufficiently demonstrated its rights in that mark under Policy ¶ 4(a)(i)).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bryantbank.online> domain name is substantively identical and confusingly similar to Complainant’s BRYANT BANK service mark. The domain name incorporates the mark in its entirety, merely eliminating the space between its terms and adding the generic Top Level Domain (“gTLD”) “.online,” which relates to an aspect of Complainant’s business. These alterations of the mark, made in forming the domain name, do not save it from the realm of identity or confusing similarity under the standards of the Policy. See, for example, Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that affixing a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
See also Kohler Co. v. Curley, FA 890812 (Forum March 5, 2007) (finding confusing similarity where the domain name <kohlerbaths.com> contained a UDRP complainant’s mark in its entirety, merely adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business”).
Further, see U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum April 9, 2007):
Elimination of … the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).
Under Policy 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <bryantbank.online> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <bryantbank.online> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the BRYANT BANK mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Bry rant,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA 626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent employs the <bryantbank.online> domain name to pass itself off as Complainant online in order to perpetrate a “phishing” scheme by which it seeks to acquire the personal information and funds of Complainant’s online customers. This use is not a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i), nor is it a legitimate non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See Virtu Financial Operating, LLC v. Lester Lomax, FA1580464 (Forum November 14, 2014) (finding that a respondent failed to provide evidence of either a bona fide offering of goods or services by means of a disputed domain name under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) where that respondent used the domain name to phish for Internet users’ personal information by offering a fake job posting on its resolving website).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the challenged <bryantbank.online> domain name, which we have found to be substantively identical and confusingly similar to Complainant’s BRYANT BANK mark, to attempt to profit illicitly from the confusion thus caused among Complainant’s Internet customers. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017), finding bad faith under Policy ¶ 4(b)(iv) where:
Respondent registered and uses the … 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.
More specifically, it is evident from the record that Respondent uses the <bryantbank.online> domain name to operate a “phishing” scheme aimed at inducing Complainant’s Internet customers to part with their personal information and funds. This further demonstrates Respondent’s bad faith in registering and using the domain name. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015):
Respondent uses the … domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the BRYANT PARK mark when it registered the <bryantbank.online> domain name. This further illustrates Respondent’s bad faith in registering the domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of a UDRP complainant’s rights in a mark, and therefore bad faith registration of a confusingly similar domain name,] through the name used for the domain and the use made of it.
Therefore, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <bryantbank.online> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 1, 2019
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