WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Finter Bank Zürich v. Charles Osabor
Case No. D2005-1142
1. The Parties
The Complainant is Finter Bank Zürich of Zurich, Switzerland, represented by CMS von Erlach Henrici, Switzerland.
The Respondent is Charles Osabor of Amman, Jordan.
2. The Domain Name and Registrar
The disputed domain name <ebankingfinter.com> (the “Domain Name”) is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2005. On November 4, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name at issue. On November 4, 2005, eNom 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 9, 2005. The Center verified that the Complaint together with the amendment to 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 November 11, 2005. In accordance with the Rules, paragraph 5(a), the due date for the Response was December 1, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 2, 2005.
The Center appointed Keita Sato as the sole panelist in this matter on December 13, 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.
4. Factual Background
The Complainant, Finter Bank Zürich, owns the following trademark:
- the Swiss trademark no P-418617 for FINTER BANK ZÜRICH, filed and registered in 1995. (Annex 7a of the Complaint)
- The international trademark no 645522 for FINTER BANK ZÜRICH for classes 35 and 36, filed in 1995 and registered in 1995 for Austria, Benelux, Germany, Spain, France, Liechtenstein and Portugal. (Annex 7d of the Complaint)
The Complainant has registered the domain names <finter.ch> and <finter.bs>, and these domain names are linked to the webpage operated by the Complainant under its mark FINTER BANK ZÜRICH.
The Respondent registered the Domain Name at issue on August 25, 2005, with eNom.
5. Parties’ Contentions
A. The Complainant
The Complainant asserts that the Domain Name at issue is confusingly similar to the trademark FINTER BANK ZÜRICH owned by the Complainant, since the Domain Name at issue includes the word “finter” which is a main part of the Complainant’s trademark, and since the Respondent has tried to cause consumer confusion.
Also, the Complainant asserts that the Respondent has no rights or legitimate interests in the Domain Name at issue, since the South African Police Service website has listed the Domain Name at issue as a “fake bank”.
Finally, the Complainant alleges that the Respondent registered the Domain Name at issue in bad faith, since the Respondent attempted to attract (potential) consumers of the Complainant to its website.B. The Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
For the Complaint to succeed, the Panel must, under paragraph 4(a) of the Policy, be satisfied:
(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Although FINTER BANK ZÜRICH is not identical to the Domain Name at issue, the Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has a right since the distinctive part of the Complainant’s trademark and the main part of the Respondent’s Domain Name are identical and since the Respondent’s use of the Domain Name at issue is aimed at causing confusion.
As stated above, the Complainant has registered FINTER BANK ZÜRICH as a Swiss and international trademark for the classes which cover banking or financial services. The distinctive part of the Complainant’s mark should be considered to be “finter”. This is supported by the fact that the Complainant itself uses the domain names <finter.ch> and <finter.bs> as stated above. Also, a previous WIPO UDRP panel has found that the distinctive part of the Complainant’s trademark is “finter”. See Finter Bank Zurich v. Gianluca Olivieri, WIPO Case No. D2000-0091.
The Panel also finds that “ebanking”, when used as part of the Domain Name at issue, appears to be descriptive of information about banking services disseminated via the Internet. That is because “banking” is generic for information on bank services, and the letter “e” preceding it has come to be understood as indicating an electronic, Internet-based form of the same (e.g., e-commerce, e-mail, e-retailing). See EAuto, L.L.C. v. Triple S. Auto Parts d/b/a King Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047. Further, even though more relevant under the third element, the Panel notes that the Respondent uses its Domain Name at issue to cause confusion with the Complainant’s business as, on the Respondent’s website, information about the Complainant’s bank business is clearly mentioned in the “About us” section (Annex 12 of the Complaint).
Based on these facts, the first requirement of the Policy is made out.
B. Rights or Legitimate Interests
Paragraph 15(a) of the Rules addresses the principles to be used in rendering a decision:
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Consequently, failure on the part of a respondent to file a response to the complaint allows the panel to base its decision on the complainant’s supported assertions. It may also permit a panel to infer that the respondent does not deny the facts which the complainant asserts nor the conclusions, which, according to the complainant, can be drawn from those facts. See Harrods Limited v. Harrod’s Closet, WIPO Case No. D2001-1027. See also Southcorp Limited v. Frontier Direct Pty Ltd, WIPO Case No. D2004-0949 and ACCOR v. ACCOR Tours, WIPO Case No. D2004-1001.
The Complainant asserts that it has not authorized the Respondent to use the mark FINTER BANK ZÜRICH, that the Respondent is not an authorized distributor and that it has not been licensed to use the Complainant’s marks. The Respondent has no connection or affiliation with the Complainant. Also, the Respondent does not appear to be known under the name “Finter” or “Finter Bank International”, which appears on the website linked to the Domain Name. The Respondent’s website is likely to mislead consumers into believing the site is operated or endorsed by or affiliated with the Complainant. The site creates an impression that it is an official site of the Complainant. The Respondent apparently intends to attract Internet users to its website. In addition, the alleged “Finter Bank International” does not seem to exist, since there are only six results when a search on “www.google.com” is conducted, and there is no other indication of its existence.
Thus, the second requirement of the Policy is made out.
C. Registered and Used in Bad Faith
The Panel finds that the Domain Name at issue is registered and is being used in bad faith. As evidenced by the content of the Respondent’s website and the particular interest the Respondent seems to show in the Complainant’s activities, it is likely that the Respondent was fully aware of the existence of the Complainant when it registered the Domain Name. This fact indicates that paragraph 4(b)(iv) of the Policy may apply in this case. Paragraph 4(b)(iv) of the Policy states that the following circumstance is evidence of registration and use of a domain name in bad faith:
“(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.”
The Panel finds that the Respondent attempted to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the affiliation or endorsement of its website, as evidenced by the content of the Respondent’s website and the particular interest the Respondent seems to show in the Complainant’s activities.
The third requirement of the Policy has also been made out.
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, <ebankingfinter.com>, be transferred to the Complainant.
Dated: December 30, 2005