Bidvest Industrial Holdings (Proprietary) Limited v. Domain Admin / CarSales LLC
Claim Number: FA2007001903543
PARTIES
Complainant is Bidvest Industrial Holdings (Proprietary) Limited (“Complainant”), represented by Daniel Greenberg of Lexsynergy Limited, London, UK. Respondent is Domain Admin / CarSales LLC (“Respondent”), Wyoming, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bidvestbank.us>, registered with Dynadot, LLC.
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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 9, 2020; the Forum received payment on July 9, 2020.
On July 10, 2020, Dynadot, LLC confirmed by e-mail to the Forum that the <bidvestbank.us> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 July 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 3, 2020 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@bidvestbank.us. Also on July 13, 2020, 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 August 6, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 usTLD 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 usTLD Policy, usTLD 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 uses the BIDVEST mark to identify with its international services, trading and distribution company. Complainant has registered the BIDVEST BANK mark as a trademark in South Africa (Reg. No. 2007/12920, registered on July 2, 2007), which demonstrates its rights in the mark. The BIDVEST mark has been registered by Complainant in additional countries. The <bidvestbank.us> domain name is confusingly similar to the BIDVEST mark as the domain name incorporates the mark in its entirety, along with the “.us” country-code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <bidvestbank.us> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to register any variant of BIDVEST in a domain name per Policy ¶ 4(c)(iii). Nothing in the available evidence indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). Further, Respondent is not making a bona fide offering of goods or services via the disputed domain name, nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) and (iv), respectively. Instead, the disputed domain name resolves to a page which hosts pay-per-click affiliate links.
Respondent registered or has used the disputed domain name in bad faith. Respondent has a history of registering domain names with other companies’ marks. Respondent here uses the domain name to disrupt Complainant’s business through the use of <bidvestbank.us>. Additionally, Respondent uses the <bidvestbank.us> domain name to confuse and attract Internet users to a website where it receives financial gain from pay-per-click advertisements.
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that the disputed domain name was registered on August 4, 2017.
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 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”).
Complainant has registered the mark BIDVEST BANK as a trademark in South Africa. Mark (Reg. No. 2007/12920, registered on July 2, 2007). Complainant has also registered BIDVEST with the United States Patent and Trademark Office (Reg. No. 4868684, registered on December 20, 2007.) The Panel therefore finds that respondent has rights in the BIDVEST BANK and BIDVEST marks under Policy ¶ 4(a)(i).
Further, Complainant contends that the <bidvestbank.us> domain name is confusingly similar to the BIDVEST BANK mark as the domain name incorporates the mark entirely along with the “.us” ccTLD. Panels have seen the addition of a ccTLD to a fully incorporated mark as unsuccessful in overcoming a finding of confusing similarity per Policy ¶ 4(a)(i). See Allied Bldg. Prods. Corp. v. Henkel, FA 827652 (Forum Dec. 11, 2006) (holding that “it is well established that the top-level domain, here “.us,” is insignificant with regard to UDRP analysis” when determining confusing similarity). Therefore, this Panel agrees that Respondent’s registration of <bidvestbank.us> domain name is confusingly similar to the BIDVEST BANK mark.
Complainant maintains that Respondent has no rights or legitimate interests in the <bidvestbank.us> domain name. To begin, Complainant asserts that Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to register any variant of BIDVEST BANK in a domain name per Policy ¶ 4(c)(iii). The Panel may look to the available WHOIS information and consider that Respondent has not submitted any evidence which would rebut the assertion that it is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information identifies the registrant as "CarSales LLC/Domain Admin." The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii).
The Panel further agrees that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel concludes that Respondent has failed Policy ¶ 4(c)(i).
Complainant argues that Respondent is not making a bona fide offering of goods or services via the disputed domain name, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv) and instead directs the disputed domain name so that it resolves to a page which hosts pay-per-click affiliate links. The use of a domain name to host pay-per-click links may not be considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Complainant provides proof of the resolving webpage of the disputed domain name which displays a parked webpage with affiliated links. The Panel therefore agrees that Respondent is not making an offering which would satisfy Policy ¶¶ 4(c)(ii) or (iv).
Thus, Complainant has satisfied Policy ¶4(a)(ii).
The fact that Respondent registered a domain name consisting entirely of the identical BIDVEST BANK mark demonstrates that the domain was registered with Complainant’s mark in mind, evidencing bad faith registration.
Additionally, Respondent’s promotion of pay-per-click links on its website through the <bidvestbank.us> domain name evinces Policy ¶ 4(b)(iv) bad faith because Respondent intentionally attracts Internet users for financial gain. In Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1613867 (Forum June 2, 2015), the panel found that “the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business.” Here, the Panel finds that financial gain from hosted hyperlinks is an indication of Policy ¶ 4(b)(iv) bad faith.
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bidvestbank.us> domain name be TRANSFERRED from Respondent to Complainant.
David A.Einhorn, Panelist
Dated: August 20, 2020
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