WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Comerica Incorporated v. Moniker Privacy Services / Charlie Kalopungi
Case No. D2012-1376
1. The Parties
The Complainant is Comerica Incorporated of Dallas, Texas, United States of America, represented by Bodman PLC, United States of America.
The Respondent is Moniker Privacy Services of Pompano Beach, Florida, United States of America / Charlie Kalopungi of Mahe, Seychelles.
2. The Domain Name and Registrar
The disputed domain name <comeriac.com> is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 5, 2012. On July 6, 2012, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On July 9, 2012, Moniker Online Services, LLC 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 July 10, 2012 providing the registrant and contact information disclosed by Moniker Online Services, LLC and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 13, 2012.
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 July 16, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 5, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 7, 2012.
The Center appointed George R. F. Souter as the sole panelist in this matter on August 15, 2012. 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 is a financial services company of Dallas, Texas, United States of America. It is among the 25 largest United States of America banking companies, with USD 62.6 billion as at March 2012. The Complainant has provided evidence of its United States of America Federal Trademark Registration No. 1251846, of its trademark COMERICA in relation to banking services, with use in commerce dating back to 1982, and other registrations.
The disputed domain name was registered on August 21, 2011.
5. Parties’ Contentions
The Complainant alleges that the disputed domain name is confusingly similar to the Complainant’s trademark COMERICA, with the only difference being the transposition of the terminal letters “a” and “c”, and contends that these differences are not sufficient to distinguish the disputed domain name from the Complainant’s trademark. The Complainant has drawn the Panel’s attention to the decision in Edmunds.com, Inc. v. Yingkun Guo, dba This domain name is 4 sale, WIPO Case No. D2006-0694, which dealt with the question of minor typographical differences between a domain name and a trademark.
The Complainant alleges that, after searching, to the best of its knowledge, the Respondent does not meet any of the criteria which would confer rights or legitimate interests in the disputed domain name.
The Complainant alleges that the Respondent must have known of the Complainant’s rights in its trademark COMERICA when registering the disputed domain name, and has drawn the Panel’s attention to the decision in Myer Stores Limited v. David John Singh, WIPO Case No. D2001-0763, to the effect that a finding of bad faith may be made where the Respondent “knew or should have known” of the registration and/or use of the trademark prior to registering a disputed domain name. The Complainant complains that the website of the disputed domain name promotes financial services that are similar to the Complainant’s services, and contends that this constitutes use of the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant or be cancelled:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
It is well-established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) indicators (i.e. “.com”, “.info”, “.net”, “.org”) may be considered irrelevant in assessing confusing similarity between a mark and a domain name. The Panel agrees with this view, and, considers these indicators to be irrelevant in the present case.
The Panel agrees with the panel in Edmunds.com, Inc. v. Yingkun Guo dba This domain name is 4 sale, supra, that minor typographical differences between a disputed domain name and a trademark can, in appropriate circumstances, result in a finding of confusing similarity, and so finds in the circumstances of the present case.
B. Rights or Legitimate interests
Where a respondent has failed to demonstrate rights or legitimate interests in the disputed domain name, it is, with which the present Panel agrees, that a prima facie case advanced by the complainant will be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy.
In this case, the Respondent did not take advantage of the opportunity presented in these proceedings to advance any justification of a claim to rights or legitimate interests in the disputed domain name, and the Panel can draw the appropriate conclusion under the Policy. The Panel accepts the Complainant’s contentions (above) under paragraph 4(a)(ii) of the Policy as establishing a prima facie case, and, accordingly, finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Panel agrees with the panel in Myer Stores Limited v David John Singh, supra, that a finding of bad faith may be made where a respondent knew or should have known of the registration and/or use of the complainant’s trademark prior to registering a domain name, and finds, in the circumstances of the present case, that the disputed domain name has been registered in bad faith. Following the predominant view of panels in previous UDRP decisions that use of a website operated under a disputed domain name found to have been registered in bad faith to promote competing goods or services to those protected under a complainant’s established trademark rights is clear evidence of use of the disputed domain name in bad faith, the Panel agrees with the Complainant that the use of the disputed domain name by the Respondent in the present case constitutes use in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <comeriac.com> be transferred to the Complainant.
George R. F. Souter
Dated: September 2, 2012