WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Australia and New Zealand Banking Group Limited v. N/A
Case No. D2007-0873
1. The Parties
Complainant is Australia and New Zealand Banking Group Limited of Melbourne, Australia, represented by its internal authorized representative.
Respondent is N/A of Ho Chi Minh, Viet Nam.
2. The Domain Name and Registrar
The disputed domain name <anzcard.com> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2007. On June 15, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On June 15, 2007, Go Daddy Software transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on June 25, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 15, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 17, 2007.
The Center appointed Knud Wallberg as the sole panelist in this matter on August 3, 2007. 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
Complainant is one of Australia’s largest banking institutions established more than 150 years ago and adopted its current company name in 1970.
“ANZ” is the natural acronym for Complainant’s company name and the combination of letters is registered as the trademark ANZ and as part of trademarks such as ANZ BANK and ANZ BANKING GROUP in Class 36 in several jurisdictions around the world including, inter alia, New Zealand, the United States of America and the European Union. Complainant offers its customers different credit card facilities under names such as “ANZ Diners Club Card” and “ANZ Corporate Card”.
Complainant holds and operates the domain name <anz.com>.
The disputed domain name was registered on June 18, 2003.
5. Parties’ Contentions
The contested domain name is confusingly similar to Complainant’s trademarks, particularly since it incorporates Complainant’s well-known mark ANZ.
Complainant contends that Respondent does not have any rights or legitimate interests in the contested domain name. The fact that the domain name does not resolve to any active website, and that Respondent has failed to respond to a demand letter from Complainant prior to the commencement of these proceedings supports this view.
In view of Complainant these facts also support the contention that the domain name was registered and is used in bad faith. This is further underlined by the fact that Complainant’s rights to the mark ANZ was established many years prior to the registration of the contested domain name and that it is unlikely that Respondent was not aware of Complainant and Complainant’s rights when registering the domain name. Additionally, the act of Respondent is likely to disrupt the business of Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules the panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
(1) that the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) that Respondent has no rights or legitimate interests in respects of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly Similar
The contested domain name <anzcard.com> contains as a dominant part the designation “anz”, which is identical to Complainant’s distinctive trademark ANZ. The addition of the generic term “card” cannot alter the fact that the contested domain name is confusingly similar to a trademark in which Complainant has rights. The inclusion of the gTLD denomination “.com” shall be disregarded for the purpose of these proceedings.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled.
B. Rights or Legitimate Interests
According to the Complaint, Complainant has not licensed or otherwise permitted Respondent to use its trademark or to apply for any domain name incorporating the mark.
Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the domain name. Respondent has not rebutted this and the way Respondent has been using – or not using rather - (see below) does not support a finding of rights or legitimate interests.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy, with reference to paragraph 4(c) of the Policy, are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b)(i) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith.
The Panel finds that Complainant’s trademark ANZ was a distinctive and widely known mark not only in Australia but also - at least to a certain extent - abroad when the contested domain name was registered. Further, since Respondent has not provided the Panel with any explanation on the reason for registering the disputed domain name, it is not credible to the Panel that Respondent registered the disputed domain name without knowledge of Complainant and its rights to the mark.
The Panel therefore finds that the contested domain name was registered in bad faith.
Respondent has apparently not been using the disputed domain name and at present the domain name resolves to a blank page. However, as first stated in Telstra v. Nuclear Marshmallows, WIPO Case No. D2000-0003, and repeated in many subsequent decisions under the UDRP:
“the concept of a domain name “being used in bad faith” is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by Respondent to amount to the domain name being used in bad faith.”
In the circumstances of this case, Respondent’s lack of active use of the domain name is likely to disrupt the business of Complainant since it could give those Internet users that will look for information on Complainant under the “.com” gTLD the impression that Complainant is not present on the Internet. By registering the domain name Respondent further prevents Complainant from being present under the “.com” gTLD under a domain name that seems to be a natural domain name to use for Complainant. The Panel also notes that the domain name incorporates a widely known trademark, that no Response has been filed, and that there appears to be no conceivable good faith use that could be made by Respondent of the disputed domain name.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith. Complainant has proved element 4(a)(iii) 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 <anzcard.com> be transferred to Complainant.
Dated: August 17, 2007