Think Mutual Bank v. JESUS RIESCO MILLA
Claim Number: FA2208002008470
Complainant is Think Mutual Bank (“Complainant”), represented by Jodi DeSchane of Ballard Spahr LLP, Minnesota, USA. Respondent is JESUS RIESCO MILLA (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thinkbank.online>, registered with IONOS SE.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2022. The Forum received payment on August 15, 2022.
On August 18, 2022, IONOS SE confirmed by e-mail to the Forum that the <thinkbank.online> domain name is registered with IONOS SE and that Respondent is the current registrant of the name. IONOS SE has verified that Respondent is bound by the IONOS SE registration agreement, which is in Spanish, 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 August 23, 2022, the Forum served the Complaint and all Annexes, including an English and Spanish language Written Notice of the Complaint, setting a deadline of September 12, 2022 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@thinkbank.online. Also on August 23, 2022, the English and Spanish language 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 September 22, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
As noted, the IONOS SE registration agreement is in Spanish. Pursuant to Rule 11(a), the language of the proceeding in relation to the <thinkbank.online> domain name shall be Spanish unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that the <thinkbank.online> domain name is in English and is parked at an English language website. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Spanish language Written Notice of the Complaint and, absent a Response, determines that the proceedings may be conducted in English.
A. Complainant
Complainant is a community bank, offering a variety of checking and savings accounts options, as well as multiple loan opportunities. Complainant has rights in the THINK BANK mark through registration of the mark with the United States Patent and Trademark Office (USPTO). Complainant operates a website at “www.thinkbank.com”. Respondent’s <thinkbank.online> domain name is identical or confusingly similar to Complainant’s THINK BANK mark.
Respondent lacks rights and legitimate interests in the <thinkbank.online> domain name. Complainant has not authorized or licensed Respondent to use the THINK BANK mark, nor is Respondent commonly known by the domain name. Further, Respondent is not using the domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website is inactive.
Respondent registered and uses the <thinkbank.online> domain name in bad faith to host an inactive website, lacking any substantive content. By virtue of the nature of Complainant’s services, there is a greater risk of fraudulent use of Complainant’s THINK BANK mark. In the banking sector, phishing aims to gather personal information such as banking logins, PIN, bank account number, and credit card numbers. This information is used by fraudsters to access accounts, make transfers, commit credit card fraud, or sell the information on the black market.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 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 shown that it has rights in the THINK BANK mark through registration of the mark with the USPTO (Reg. No. 4,921,662, registered on March 22, 2016). The Panel finds Respondent’s <thinkbank.online> domain name to be identical to Complainant’s THINK BANK mark, as it comprises the mark in its entirety, adding only the inconsequential “.online” generic top-level domain (gTLD), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <thinkbank.online> domain name was registered on April 4, 2020, several years after the registration of Complainant’s mark. It is inactively parked at a page for a third party web solution provider.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <thinkbank.online> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Section 3.3 of the WIPO Jurisprudential Overview 3.0 provides:
“From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding.
While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, although each of the words “think” and “bank” is descriptive, in combination they are distinctive of Complainant’s online banking services, as evidenced by Complainant’s registration of its THINK BANK mark. Given the risk of people falling for fraudulent emails from scammers pretending to be from a bank, Respondent’s <thinkbank.online> domain name is likely to have been registered in contemplation of an attempt to take advantage of the reputation of Complainant’s mark.
Respondent has failed to contest any of Complainant’s assertions and has not provided any evidence of actual or contemplated good-faith use.
Under these circumstances the Panel finds Respondent registered and is using the domain name in bad faith.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thinkbank.online> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 23, 2022
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