The Complainant is BinckBank N.V. of Amsterdam, the Netherlands.
The Respondent is Helo Holdings LTD of London, United Kingdom of Great Britain and Northern Ireland.
The disputed domain name <binkbanck.nl> (the “Domain Name”) is registered with SIDN.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 5, 2010 by email. On March 5, 2010, the Center transmitted by email to SIDN a request for registry verification in connection with the Domain Name. On March 5, 2010, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.5, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 5, 2010. In accordance with the Regulations, article 7.1, the due date for Response was March 25, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 26, 2010.
After having received the payment of the fees, the Center appointed Willem J.H. Leppink as the panelist in this matter on March 26, 2010. The Panelist finds that the Panelist was properly appointed. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2.
The Complainant is an online bank for investors and is holder of several BINCK and BINCKBANK trademarks, including a Benelux trademark No. 777443 for, inter alia, financial affairs and insurance, which trademark was filed on November 16, 2005 and registered on November 17, 2005.
The Domain Name was registered on December 30, 2009. According to the Complainant, until late February 2010, the Domain Name led to a website displaying a list of ads from Google AdSense.
The Complainant is a Dutch online broker and is listed on NYSE Euronext Amsterdam. The Complainant offers access to all the important financial markets around the world, online advice and asset management services, online savings, insourcing of administrative processing of securities and cash transactions and extensive market information. The Complainant uses the websites “www.binck.nl” and “www.binckbank.nl”.
The Complainant has several Benelux and Community trademarks BINCK and BINCKBANK. According to the Complainant the Domain Name is confusingly similar to the Complainant's trademarks. By using the website of the Respondent, clients and potential clients of the Complainant could potentially be confused in thinking that they are visiting a website of the Complainant.
Furthermore, the Complainant contends that the Respondent has no rights or legitimate interests in the Domain Name as the Domain Name is not associated with the activities undertaken by the Respondent.
In addition, the Complainant contends that the Domain Name has been registered or is being used in bad faith. A week before filing the Complaint, when BinckBank had not yet notified the Respondent of its trademark infringement, the Domain Name showed ads from Google Adsense. Using the AdSense-links on the Domain Name, clients and potential clients can be redirected to the websites of the Complainant. For each click on these sponsored links the respondent earns a percentage of the advertising revenues. The Respondent thus earns money by the mistakes clients and potential clients make when they mistype the Uniform Resource Locator “www.binck.nl” or “www.binckbank.nl”.
Furthermore, the Complainant states, substantiated by an exhibit, that phishing activities were performed from an e-mail address which originated from the Domain Name. The Complainant holds that such is a serious offence which can cause damage to the public in general and to organizations, such as banks.
The Respondent did not reply to the Complainant's contentions.
The Complainant holds several Benelux and Community BINCK and BINCKBANK word marks. Therefore the Panelist has concluded that the Complainant has rights in the trademark, which is protected under Dutch law.
The Panelist has disregarded the “.nl” suffix while assessing whether the Domain Name is identical or confusingly similar to the BINCKBANK trademark.
The only difference between such trademark and the Domain Name is the positioning of the letter “c” in the Domain Name.
Notwithstanding this difference in positioning of the letter “c”, the Domain Name is phonetically and conceptually identical to the trademark and is visually confusingly similar to the BINCKBANK trademark.
According to article 2.1 sub b of the Regulations, the Complainant must demonstrate that the Respondent has no rights to or legitimate interests in the Domain Name. This condition is met if the Complainant makes a prima facie case that the Respondent has no rights or legitimate interests, and the Respondent fails to rebut that showing by for example providing evidence of one of the three circumstances mentioned in the Regulations, article 3.1.
The Complainant has contended that it has not authorized the Respondent to use a Domain Name which is confusingly similar to its BINCKBANK trademark and the Respondent did not dispute the Complainant's claim to that effect. The Panelist could neither establish any indication that the Respondent, (a) before having any notice of the dispute, made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services, (b) is commonly known by the Domain Name as an individual, business or other organization, or (c) is making a legitimate noncommercial use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the Complainant or its trademarks.
The Respondent has not rebutted this contention.
Consequently, the Panelist concludes that the Respondent has no rights to or legitimate interests in the Domain Name.
Furthermore, the Complainant contended that the Domain Name has been registered or is being used in bad faith. Before the Complainant notified the Respondent of its trademark infringement, the Domain Name showed ads from Google Adsense, which redirected consumers to the Complainant's websites.
Additionally, however the Complainant has indicated that phishing activities were performed from an e-mail address which originated from the Domain Name. Phishing is, as indicated in Crédit Industriel et Commercial S.A., Banque Fédérative du Crédit Mutuel v. Michel Dupont, WIPO Case No. D2009-1498, “the criminally fraudulent process of attempting to acquire sensitive information such as usernames, passwords and credit card details by masquerading as a trustworthy entity in an electronic communication”. The Respondent in the present case apparently targeted Dutch students by pretending to be the Complainant and sending them an offer from an e-mail address associated with the Domain Name, with the objective of acquiring personal data. Phishing activities pose a severe threat to customers, trademark holders and third parties. This reinforces the necessity to have an expedited but fair dispute resolution process in place for dealing with connected cybersquating issues. The Center and the Panelist were able to process the present case in five weeks from the Center's receipt of the Complaint.
The Panelist refers with agreement to various decisions under the Uniform Domain Name Dispute Resolution Policy (comparable to the Regulations) in which panels have held that performing phishing scams using the disputed domain name constitutes use in bad faith (see e.g. CareerBuilder, LLC v. Stephen Baker, WIPO Case No. D2005-0251, The Boots Company, PLC v. The programmer adviser, WIPO Case No. D2009-1383 and Societe Francaise Du Radiotelephone - SFR v. Morel David, WIPO Case No. D2009-1563, and the decisions referred to therein).
Therefore, the Panelist finds that the Complainant has satisfied the third requirement of article 2.1 of the Regulations.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain name <binkbanck.nl> be transferred to the Complainant.
Willem J.H. Leppink
Dated: April 8, 2010