WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Saxo Bank A/S v. Wan Zhong
Case No. D2010-1977
1. The Parties
The Complainant is Saxo Bank A/S of Hellerup, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Wan Zhong of Shen Zhen City, the People’s Republic of China.
2. The Domain Name and Registrar
The disputed domain name <wwwsaxobank.com> is registered with EuroDNS S.A.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2010. On November 18, 2010, the Center transmitted by email to EuroDNS S.A. a request for registrar verification in connection with the disputed domain name. On November 26, 2010, EuroDNS S.A. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 26, 2010 providing the registrant and contact information disclosed by EuroDNS S.A., and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 29, 2010.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 30, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 20, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 21, 2010.
The Center appointed Syed Naqiz Shahabuddin as the sole panelist in this matter on December 23, 2010. 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 following summary sets out the uncontested factual submissions made by the Complainant:
4.1 The Complainant is a global investment bank specialising in online trading and investment across the international financial markets. The Complainant enables private investors and institutional clients to trade FX, CFDs, ETFs, stocks, futures, options and other derivatives via online trading platforms as well as other professional portfolio and fund management.
4.2 Since 1992, the Complainant has been a facilitator in the global capital markets aggregating liquidity, offering access to exchanges around the world and providing its suite of products and platforms to private clients, institutions, banks and brokerages.
4.3 The Complainant is a fully licensed and regulated European bank and supports a global base of individual retail clients, corporations and financial institutions from its headquarters in Denmark and numerous regional offices. Since receiving European bank status in June 2001, the Complainant has rapidly become a leading presence in online trading.
4.4 The Complainant has, since 2001, registered the trademarks SAXOBANK and SAXOBANK.COM in several jurisdictions around the world in connection with financial services.
4.5 The Complainant provides its online services through its website located at <www.saxobank.com>.
4.6 The Respondent operates a pay-per-click website using the disputed domain name. Attempts to reach the Respondent via emails by the Complainant on November 8, 2010 were unsuccessful as the Complainant’s emails were rejected or refused.
5. Parties’ Contentions
5.1 The Complainant contends that it has rights to the trademark SAXOBANK and SAXOBANK.COM in several international jurisdictions. Some of these marks have been registered as early as 2001.
5.2 The Complainant further contends that the Respondent does not have any rights or legitimate interests to the disputed domain name because:
(a) the Respondent is not commonly known by the domain name;
(b) the Respondent is making an illegitimate commercial and unfair use of the domain name, with the intent for commercial gain, misleadingly to divert consumers or to tarnish the trademarks SAXOBANK and SAXOBANK.COM;
(c) the Respondent has not used the trademark SAXOBANK or any misspelling thereof in association with any bona fide offering of goods or services;
(d) the Respondent is not affiliated with the Complainant and has never been authorised by the Complainant to use the SAXOBANK trademark or any trademark confusingly similar thereto.
5.3 In relation to the requirement of bad faith registration and use of the domain name, the Complainant contends as follows:
(a) the Respondent must have been aware of the Complainant’s trademark prior to the date of registration of the domain name in dispute in March 2009, having regard to the deliberate misspelling of the disputed domain name and the reputation of the Complainant’s trademark;
(b) the Respondent uses the disputed domain name to intentionally attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s website “www.saxobank.com” and the Complainant’s SAXOBANK and SAXOBANK.COM trademarks as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to succeed in its Complaint, the Complainant is required to establish the following elements set out under paragraph 4(a) of the Policy:
(a) that the domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(b) that the Respondent has no rights or legitimate rights in respect of the domain name; and
(c) that the domain name has been registered and is being used in bad faith.
6.1. Identical or Confusingly Similar
The Panel is satisfied with the evidence adduced by the Complainant to evidence its rights to the trademarks SAXOBANK and SAXOBANK.COM. Although the Complainant ought to have adduced at least one certificate of registration instead of extracts of its trademark registrations to support its claim that the trademarks have been registered in its name, the Complainant did adduce additional evidence of use of these trademarks through extracts from its financial website located at “www.saxobank.com”. Based on the strength of this evidence as a whole, the Panel is satisfied that the Complainant has rights to the trademark SAXOBANK and SAXOBANK.COM.
The disputed domain name comprises the Complainant’s SAXOBANK and SAXOBANK.COM trademarks in its entirety. As such the disputed domain name is confusingly similar to the Complainant’s SAXOBANK and SAXOBANK.COM trademarks for the purpose of the Policy. The addition of the letters “www” to the word “saxobank” in the disputed domain name does not change the overall impression that the disputed domain name and the Complainant’s trademarks are confusingly similar to one another.
6.2. Rights or Legitimate Interests
The Complainant’s assertions had not been rebutted by the Respondent to indicate whether it has any rights or legitimate interests to the disputed domain name. There was also no evidence to indicate that the Respondent was known by the disputed domain name or the name SAXOBANK. The Complainant further confirms that the Respondent is not associated with the Complainant nor has the Respondent been authorised to use the Complainant’s trademarks.
Based on a review of the evidence adduced, it also appears that the Respondent is not using the disputed domain name for a bona fide offering of good or services but is instead using it to operate a bare pay-per-click website.
The failure of the Respondent to reply to the Complainant’s contentions and the evidence adduced by the Complainant leads the Panel to find that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel could not find any justification, rights or legitimate interests on the part of the Respondent to the words comprising the disputed domain name.
Based on the above circumstances, the Panel is, therefore, satisfied that the second element of paragraph 4(a) of the Policy has been proven by the Complainant.
6.3. Registration and Use in Bad Faith
On the balance of probabilities, the Panel agrees with the contention by the Complainant that the Respondent had knowledge of the Complainant’s trademarks when it registered and started using the disputed domain name. The degree of similarities between the disputed domain name and the Complainant’s trademarks lends weight to the Complainant’s assertion that the Respondent had knowledge of the Complainant’s trademarks. The length of period of almost eight years between the registration of the disputed domain name and the registration of the Complainant’s trademarks and use of the Complainant’s “www.saxobank.com” website also support the Complainant’s contention that the Respondent had the requisite knowledge of the Complainant’s trademarks.
This knowledge when combined with the manner in which the Respondent used the disputed domain name, suggests that the Respondent intentionally attempted to attract for commercial gain Internet users to its website, by creating confusion as to the source, sponsorship, affiliation or endorsement of its website. The Panel, therefore, finds that bad faith has been demonstrated under 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, <wwwsaxobank.com> be transferred to the Complainant.
Syed Naqiz Shahabuddin
Dated: January 6, 2011