WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Development Credit Bank Limited v. Direct Privacy ID ED191
Case No. D2011-0786
1. The Parties
Complainant is Development Credit Bank Limited of Mumbai, India, represented by SNG & Partners of India.
Respondent is Direct Privacy ID ED191 of Georgetown, Grand Cayman, Overseas Territory of United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <developmentcreditbank.com> is registered with DirectNIC LTD.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 5, 2011. On May 5, 2011, the Center transmitted by email to DirectNIC LTD. a request for registrar verification in connection with the disputed domain name. On May 5, 2011, DirectNIC LTD. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on May 6, 2011.
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” 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 Respondent of the Complaint, and the proceedings commenced on May 9, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 29, 2011. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 30, 2011.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on June 8, 2011. 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 has registered the word trademark and service mark DEVELOPMENT CREDIT BANK LTD. on the Trade Marks Registry of the Intellectual Property Office of India, registration number 984186, dated January 16, 2001, in International class (IC) 9 covering, inter alia, computers and computer programs; registration number 984187, dated January 16, 2001, in IC 16, covering, inter alia, credit cards; registration number 984188, dated January 16, 2001, in IC 19 covering, inter alia, portable buildings, and; registration number 1255091, dated December 12, 2003, in IC 36, covering, inter alia, banking. Complainant has provided evidence of renewals of the aforesaid registrations where such were required.
Complainant is a commercial bank whose presence in India commenced in 1930, and which received a banking license from the Reserve Bank of India on May 31, 1995 in the name "Development Credit Bank Limited". Complainant operates a network of 80 branches across various states of India, including Maharashtra, Gujarat, Andhra Pradesh, Karnataka, Delhi/NCR, Rajasthan, Goa, Tamil Nadu, Haryana, West Bengal and the Union Territories of Daman & Diu and Dadra & Nagar Haveli. Complainant operates a commercial Internet website at “www.dcbi.com”.
According to the DirecNIC LTD. verification report, Respondent is registrant of the disputed domain name. According to that report, the record of registration of the disputed domain name was created on February 13, 2006.
The disputed domain name has been used since at least September 2008 in connection with a parking page headed with the disputed domain name. The parking page includes a substantial number of links to various forms of banking and credit services, including "savings bank", "banks", "personal bank", "Chase Bank", "Offshore Banks", and similar. Clicking through on the links directs Internet users to sponsored links by various banking enterprises that are not associated with Complainant. The links and click through results differ depending upon the geographic location of the Internet user.
The registration agreement in effect between Respondent and DirecNIC LTD. subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, of which the Center is one, regarding allegations of abusive domain name registration and use. (Policy, paragraph 4(a)).
5. Parties’ Contentions
Complainant contends that it has rights in the trademark and service mark DEVELOPMENT CREDIT BANK LTD. and that the disputed domain name is identical or confusingly similar to its trademark and service mark.
Complainant argues that Respondent lacks rights or legitimate interests in the disputed domain name because: (1) Respondent has not been known by the disputed domain name or the trademark "Development Credit Bank"; (2) Respondent is not making a legitimate noncommercial use of the disputed domain name because the parking page redirects Internet users through sponsored links, and; (3) Respondent has not made "substantive use" of the disputed domain name in connection with a business or otherwise, having used the disputed domain name only to generate click through revenues from its parking page.
Complainant alleges that Respondent registered and has used the disputed domain name in bad faith by creating a likelihood of Internet user confusion regarding Complainant as source, sponsor, affiliate or endorser of Respondent’s commercial website. Complainant alleges that certain banking enterprises linked to Respondent’s parking page are its direct competitor in its geographic region. Complainant argues that Respondent must be aware of Complainant's trademark rights because of the high Google search rank for Complainant when using the search term "Development Credit Bank".
Complainant requests the Panel to direct the Registrar to transfer the disputed domain name to Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceedings that may substantially affect its rights. 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., Rules, paragraph 2(a)).
The Center notified Respondent of the Complaint and commencement of the proceedings by means set forth in the Rules. Tracking records of the courier delivery service employed by the Center indicate that the Complaint was successfully delivered at the address specified by Respondent in its registration of the disputed domain name. The Panel is satisfied that Respondent received adequate notice of these proceedings and was afforded a reasonable opportunity to respond.
Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use, and to obtain relief. These elements are that:
(i) respondent’s domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the domain name; and
(iii) respondent’s domain name has been registered and is being used in bad faith.
Each of the aforesaid three elements must be proved by a complainant to warrant relief.
A. Identical or Confusingly Similar
Complainant has provided evidence of its registration of the trademark and service mark (hereinafter "trademark") DEVELOPMENT CREDIT BANK LTD. on the Trade Marks Registry of the Intellectual Property Office of India, and of use of that trademark in commerce in India. Respondent has not challenged Complainant's assertion of trademark rights. The Panel determines that Complainant has rights in the trademark DEVELOPMENT CREDIT BANK LTD.
The disputed domain name <developmentcreditbank.com> incorporates Complainant's trademark, leaving off the term “LTD” that is a standard abbreviation for a limited liability company.1 Internet users would reasonably expect a banking enterprise to employ a domain name without express designation of its corporate status. The Panel determines that the disputed domain name is confusingly similar to Complainant's trademark.
The Panel determines that Complainant has rights in a trademark and that the disputed domain name is confusingly similar to that trademark.
B. Rights or Legitimate Interests
The second element of a claim of abusive domain name registration and use is that the respondent has no rights or legitimate interests in respect of the domain name (Policy, paragraph 4(a)(ii)). The Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial 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.” (Policy, paragraph 4(c))
Complainant has argued that Respondent lacks rights or legitimate interests in the disputed domain name because Respondent was not commonly known by the disputed domain name, because Respondent has not made legitimate noncommercial or fair use of the disputed domain name, and because Respondent has not made any other substantive use of the disputed domain name that might establish rights or legitimate interests. Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent’s sole use of the disputed domain name has been in connection with a link farm parking page that advertises services of third parties including competitors of Complainant. It is well-established that operating a link farm parking page using a trademark in a domain name, and providing connection to goods and/or services competitive with the trademark owner, does not establish rights or legitimate interests. See, e.g., Editorial Armonia, S.A, de C.V. v. Cagri Sadik Bayram, WIPO Case No. D2010-1963; Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp., WIPO Case No. D2010-1404; VIVO S.A. and PORTELCOM PARTICIPAÇÕES S.A. v. Domains By Proxy - NA Proxy Account Niche Domain Proxy Manager, WIPO Case No. D2010-0925; Overstock.com, Inc. v. Metro Media, WIPO Case No. DME2009-0001; Fifth Third Bancorp v.Texas International Property Associates, WIPO Case No. D2007-0537; MasterCard International Incorporated v. Paul Barbell, WIPO Case No. D2007-1139, Shaw Industries Group, Inc., and Columbia Insurance Company v. Parth Shah, WIPO Case No. D2007-1368, and Alfa Laval AB and Alfa Laval Corporate AB v. Alfalava.com, WIPO Case No. D2007-1881.
Respondent has provided no justification for its registration and use of the disputed domain name that might establish rights or legitimate interests.
The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy indicates that certain circumstances may, “in particular but without limitation”, be evidence of the registration and use of a domain name in bad faith. These include that: “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] web site 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 [respondent’s] web site or location or of a product or service on [respondent’s] web site or location”.
Respondent registered and has used Complainant's DEVELOPMENT CREDIT BANK LTD trademark in the disputed domain name to direct Internet users to a pay-per-click parking page that includes links to competitors of Complainant. Internet users entering Complainant's trademark in a web browser and expecting to be directed to a commercial website operated by Complainant are instead directed to competitors of Complainant. Respondent has intentionally used Complainant's trademark in the disputed domain name for commercial gain to create Internet user confusion regarding Complainant as source, sponsor, affiliate or endorser of Respondent’s website.
The Panel determines that Respondent registered and has used the disputed domain name in bad faith within the meaning 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 <developmentcreditbank.com> be transferred to the Complainant.
Frederick M. Abbott
Dated: June 20, 2011
1 The generic top-level domain identifier ".com" is not relevant to analysis of confusing similarity in this context.