The Royal Bank of Scotland Group plc v. Teddy Jackson
Claim Number: FA0705000992134
Complainant is The Royal Bank of Scotland Group plc (“Complainant”), represented by James
A. Thomas, of Parker, Poe, Adams & Bernstein L.L.P.,
Post Office
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <rbsonline.org>, registered with
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 24, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 25, 2007.
On May 24, 2007, Melbourne IT confirmed by e-mail to the National Arbitration Forum that the <rbsonline.org> domain name is registered with Melbourne IT and that Respondent is the current registrant of the name. Melbourne IT has verified that Respondent is bound by the Melbourne IT registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 19, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@rbsonline.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 26, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr.. 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <rbsonline.org> domain name is confusingly similar to Complainant’s RBS mark.
2. Respondent does not have any rights or legitimate interests in the <rbsonline.org> domain name.
3. Respondent registered and used the <rbsonline.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Royal Bank of Scotland Group plc, is one of the world’s leading financial services companies. Complainant maintains offices around the world and employs more than 140,000 people. Complainant’s main services include consumer and commercial lending, credit card services, investment and advisory services, real estate services and various other financial services. Complainant offers online banking services at the <rbs.com>, <rbsdigitalbanking.co.uk> and <rbsdigital.com> domain names.
Complainant has registered the RBS mark with the United Kingdom Intellectual Property Office (“UKIPO”) (Reg. No. 2,004,617 issued January 5, 1996), and holds numerous trademark registrations for the RBS mark with trademark offices around the world, including with the United States Patent and Trademark Office and the European Union’s Office for Harmonization in the Internal Market.
Respondent registered the <rbsonline.org> domain name on January 4, 2007. Respondent is not currently making any use of the disputed domain name. At some previous time, Respondent used the disputed domain name in connection with a fraudulent lottery scheme seeking financial information from unsuspecting Internet users.
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."
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(e), 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.”).
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.
Complainant has established rights in the RBS mark pursuant
to Policy ¶ 4(a)(i) through registration of the mark with the UKIPO. See Royal Bank of Scot. Group plc v. TRB,
FA 622345 (Nat. Arb. Forum Feb. 22, 2006) (“The Panel accepts Complainant’s
registration of the THE ROYAL BANK OF SCOTLAND mark with the United Kingdom
Patent Office as evidence of Complainant’s rights in the mark pursuant to
Policy ¶ 4(a)(i).”); see also Thermo Electron Corp. v. Xu, FA 713851
(Nat. Arb. Forum
The <rbsonline.org>
domain name incorporates Complainant’s entire RBS mark and merely adds the term
“online” and the generic top-level domain “.org.” The Panel finds these additions to
Complainant’s registered mark insufficient to differentiate the disputed domain
name from the mark pursuant to Policy ¶ 4(a)(i). See Arthur Guinness Son & Co.
(Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding
confusing similarity where the domain name in dispute contains the identical
mark of the complainant combined with a generic word or term); see also
Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that
because the subject domain name incorporates the VIAGRA mark in its entirety,
and deviates only by the addition of the word “bomb,” the domain name is
rendered confusingly similar to the complainant’s mark); see also Gardline Surveys Ltd.
v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The
addition of a top-level domain is irrelevant when establishing whether or not a
mark is identical or confusingly similar, because top-level domains are a
required element of every domain name.”).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant claims that Respondent has no rights or legitimate interests in the <rbsonline.org> domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). In this case, Complainant has made out a prima facie case under Policy ¶ 4(a)(ii). See Document Tech., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the
disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”); see also Canadian Imperial Bank of Commerce v. D3M
Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no
rights or legitimate interests where no such right or interest was immediately
apparent to the panel and the respondent did not come forward to suggest any
right or interest it may have possessed).
However, the Panel will now examine the record
to determine if Respondent has rights or legitimate interests under Policy ¶
4(c).
Respondent is not commonly known by the <rbsonline.org> domain name, because the WHOIS information lists “Teddy Jackson” as the registrant of the domain name, and there is no other evidence in the record suggesting that Respondent is commonly known by the disputed domain name. Thus, Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent used the <rbsonline.org> domain name to pass itself off as Complainant in order to defraud Complainant’s customers through a fraudulent lottery scheme. Complainant has alleged that Respondent used the domain name to “phish” for financial information in an attempt to defraud Complainant’s customers. Respondent’s attempt to pass itself off as Complainant and “phish” for customers’ financial information is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum Mar. 13, 2002) (stating that where the respondent copied the complainant’s website in order to steal account information from the complainant’s customers, that the respondent’s “exploitation of the goodwill and consumer trust surrounding the BLIZZARD NORTH mark to aid in its illegal activities is prima facie evidence of a lack of rights and legitimate interests in the disputed domain name”); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Moreover, evidence in the record indicates Respondent’s <rbsonline.org> domain does not currently resolve to an active website. The lack of any demonstrable preparations to use the disputed domain name in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use allows the Panel to conclude Respondent has not demonstrated rights or legitimate interests in the <rbsonline.org> domain name pursuant to Policy ¶ 4(a)(ii). See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's passive holding of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the respondent has advanced no basis on which the panel could conclude that it has a right or legitimate interest in the domain names, and no commercial use of the domain names has been established).
The Panel finds that Policy ¶ 4(a)(ii) is satisfied.
Respondent previously used the <rbsonline.org> domain name to engage in a phishing scam. By utilizing Complainant’s registered
trademark, Respondent was using the domain name in connection with a fraudulent
lottery scheme to deceive Complainant’s Internet customers and manipulate them
into divulging sensitive financial information.
Thus, Respondent’s use of the <rbsonline.org>
domain name constitutes bad faith registration and use under Policy ¶
4(a)(iii). See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb.
Forum May 3, 2004) (finding that using a domain name that “is confusingly
similar to Complainant’s mark, redirects Internet users to a website that
imitates Complainant’s billing website, and is used to fraudulently acquire
personal information from Complainant’s clients” is evidence of bad faith
registration and use); see also Capital
One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum
Additionally, Respondent’s failure to currently use the <rbsonline.org> domain name in any way is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s passive holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”).
The Panel finds that Policy ¶ 4(a)(iii) is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rbsonline.org> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr. , Panelist
Dated: July 2, 2007
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