WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ansbacher & Co Limited v. Mike McCain
Case No. D2005-0955
1. The Parties
The Complainant is Ansbacher & Co Limited, United Kingdom of Great Britain and Northern Ireland, represented by DLA Piper Rudnick Gray Cary UK LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Mike McCain, Jordan.
2. The Domain Name and Registrar
The disputed domain name <ansbacheronline.com> is registered with Abacus America Inc. dba Names4Ever.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2005. On September 7, 2005, the Center transmitted by email to Abacus America Inc. dba Names4Ever a request for registrar verification in connection with the domain name(s) at issue. On September 21, 2005, Abacus America Inc. dba Names4Ever transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 21, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was October 11, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 12, 2005.
The Center appointed William Lobelson as the sole panelist in this matter on October 18, 2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On November 16, 2005, the Panel issued a procedural order to obtain further information from the parties, which were requested to respond thereto by November 30, 2005.
The Complainant filed its response to the Panel Order on November 28, 2005.
The Respondent did not file any response.
4. Factual Background
The Complainant is a British financial company known under the name ANSBACHER.
It owns a series of trademark registration, in particular UK registrations No. 2060312 and No. 2250341 respectively dated March 7, 1996, and October 26, 2001, for ANSBACHER and ANSBACHER device.
The disputed domain name is <ansbacheronline.com> and was registered on May 23, 2005.
According to the Complainant, the domain name used to link to a slavish copy of the Complainant’s web site.
5. Parties’ Contentions
The Complainant asserts that the Respondent had redirected the disputed domain name to a web site which is a slavish copy of the genuine Complainant’s web site, but that, at the time when the Complaint is filed, the copied website is no longer available.
The Complainant however deducts from the sole above fact that the disputed domain name is identical to its trademarks, that the Respondent has no right or legitimate interest in the domain name and that the domain name was registered and is used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules). In this case, the Panel finds that the Center complied with all formalities and that the Complaint and Notification of Respondent Default were properly notified to the Respondent.
The Panel finds that the Respondent had proper notice of this administrative proceeding.
Because the Respondent has defaulted in providing a Response to the Complaint, the Panel is directed to decide this administrative proceeding on the basis of the Complaint (Rules, paragraph 14(a)), and certain factual conclusions may be drawn by the Panel on the basis of the Complainant’s undisputed representations (Rules, paragraph 15(a)).
Paragraph 4(a) of the Policy sets forth three elements that must be established by the Complainant to merit a finding that the Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel has to disagree with the Complainant’s conclusion that the disputed domain name is identical to its trademarks, in particular UK Registration No. 2060312.
UK Reg. No. 2060312 is only formed the name ANSBACHER.
Among the trademarks which the Complainant supplied copies of with its Complaint, the Panel cannot find one which is identical to the disputed domain name <ansbacheronline.com>.
The Complainant rightfully sustains that the terms “online” appear descriptive of online banking services and thus claims that “online” within the contested domain name should be ignored, but concludes that the contested domain name and its earlier trademark are identical.
The Panel is of the opinion that the Complainant does not draw the appropriate conclusion out of his demonstration.
However, it clearly appears to the Panel that the contested domain name “ansbacheronline.com” is confusingly similar with the earlier trademark ANSBACHER, as one is to believe that “ansbacheronline” identifies an online service offered by the company ANSBACHER.
The Panel concludes that the requirements of Paragraph 4 (a)(i) are satisfied.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the following circumstances can demonstrate that the Respondent has rights to or legitimate interests in the Domain Name:
(i) before any notice was given to the Respondent of the dispute, the Respondent used, or demonstrably made 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) the Respondent (as an individual, business, or other organization) has been commonly known by the Domain Name, even though it has not acquired any trademark or service mark rights; or
(iii) the Respondent is making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
It is a consensus view of WIPO UDRP panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, “http://www.wipo.int/amc/en/domains/search/overview/index.html”) that the overall burden of proof under paragraph 4(c) of the Policy rests with the Complainant, which is required to establish that the respondent prima facie lacks any rights to, or legitimate interests in, a domain name, and that if the respondent fails to answer such case, the complainant is deemed to have satisfied its burden of proof (Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
The Complainant claims that the Respondent has no interest in the contested domain name for it could not ignore the rights vested in the notorious trademark ANSBACHER and made a slavish copy of the Complainant’s web site.
The Panel observes that the arguments hereby developed by the Complainant should rather be used in order to satisfy the requirements of paragraph 4(b) of the Policy.
Nevertheless, the Panel infers from the Complainant’s statements that the Respondent was not authorized to use the trademark ANSBACHER.
The Respondent, being in default, has not presented any justification for holding the contested domain name.
The Panel therefore considers that there is no element in the present case which may be interpreted as justifying any right or legitimate interest of the Respondent in the contested domain name.
The Panel is therefore satisfied that the Respondent has no rights or legitimate interests in the disputed domain name, in accordance with the provisions of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, the Domain Name has been used and registered in bad faith if:
(i) circumstances indicating that the Respondent has registered and has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the Domain Name; or
(ii) the Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on its website or location.
The Complainant contends that that the disputed domain name would have been linked to a slavish copy of the Complainant’s web site and states that the Respondent’s behaviour shows an intent to attract for commercial gain and deceive internet users.
Even though the Complainant is unable to bring any material evidence of its assertions as the said copied web page is no longer available, it produces an e-mail sent by Detective Constable Stephen Clarke of the Computer Crime Unit Metropolitan Police in London which witnesses that the contested domain name resolves to a web site which appears to be a reproduction of the institutional web site of the Complainant, but includes an invitation to internet users to send a deposit of £2500 to start an account.
The redirection of the contested domain name to the copied web page has since been interrupted, but it shows nevertheless that the Respondent has registered the disputed domain name in bad faith, has been using and keeps on using the same in bad faith too.
As the web page towards which the Respondent redirected the disputed domain name used to be a copy of the genuine web page of the Complainant’s, there is no doubt that when he registered the disputed domain name, the Respondent had the Complainant’s marks in mind.
It appears that the use of the disputed domain name, namely its redirection towards an imitation of the web page of the Complainant, reveals an intent to mislead the public and attract the Complainant’s customers to a fake website for fraudulent purposes.
Such a practice is known as “phishing”: it consists of attracting the customers of a bank or any other financial company to a web page which imitates the real page of the bank, with a view to having customers disclose confidential information like a credit card or bank account number, for the purpose of unlawfully charging such bank accounts or withdrawing money out of them.
The Respondent has very likely registered and used the disputed domain name, which is confusingly similar with the trademarks and domain names of the Complainant, for such a purpose.
See Halifax plc v. Sontaja Sunducl, WIPO Case No. D2004-0237 <paramount-bank.net>: “the apparent potential for phishing and obtaining information by deception is not just evidence of bad faith but possibly suggestive of criminal activity”; Bayshore Bank & Trust (Barbados) Corporation v. Motschh Ivan, WIPO Case No. D2005-0011 <baysoretrust.net>: “The Respondent appears to be engaged in “phishing” for mistaken customers of the Complainant, that is, seeking to gain access to the user names and passwords of the Complainant’s clients through mistaken logins to the Respondent’s site. Not only is this activity criminal, it is clear evidence that the Respondent has no legitimate interest in the domain name”; CarrerBuilder, LLC v. Stephen Baker, WIPO Case No. D2005-0251 <job-careerbuilder.com>; Banco Bilbao Vizcayas Argentaria v. X company, WIPO Case No. D2005-0289 <bbva-support.com>.
The redirection of the disputed domain name has now been interrupted (upon request of the Computer Crime Unit Metropolitan Police), but as the Respondent has deliberately refrained from transferring the domain name to the Complainant, even after having been put on notice of the Complainant’s trademark rights, and after having been notified of the Complaint, the Respondent continues to withhold the domain name in bad faith.
This must be regarded as a passive and bad faith holding of the disputed domain name.
The Panel therefore considers the Respondent has registered, has been using and is using the Domain Name in bad faith in accordance with paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <ansbacheronline.com> be transferred to the Complainant.
Date: December 2, 2005