WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
National Westminster Bank plc v. Babalola, Awokoya
Case No. D2012-1737
1. The Parties
Complainant is National Westminster Bank plc of London United Kingdom of Great Britain and Northern Ireland, represented by Melbourne IT DBS Inc., Sweden.
Respondent is Babalola, Awokoya of Kano, Nigeria.
2. The Domain Names and Registrar
The disputed domain names <ntwsonline.com> and <ntwsonlines.com> are registered with Omnis Network, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2012. On August 27, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 30, 2012, the Registrar 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 September 11, 2012.
The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on September 13, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 3, 2012. A part from the brief email of October 4, 2012 in which Respondent stated he would transfer the disputed domain name if he received compensation, no further communication was received from Respondent. Accordingly, the Center informed the Parties on October 15, 2012 that it was proceeding with panel appointment process.
The Center appointed Jeffrey H. Kaufman as the sole panelist in this matter on November 12, 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
According to the registrar’s WhoIs records, the disputed domain name <ntwsonline.com> was registered on January 23, 2012, and <ntwsonlines.com> was registered on February 13, 2012.
Complainant sent a cease and desist letter to Respondent on March 1, 2012, by email, but no response was received.
Respondent sent an email to the Center on October 4, 2012, in response to receiving Complainant. Respondent stated: “I requested for compensation to be paid for i could sign the transfer letter. Once you are ready with the fees as initially discussed, i will proceed.”
5. Parties’ Contentions
Complainant asserts that it is the owner of the famous trademark NATWEST and of registrations for the mark internationally, including CTM Reg. No. 4319067 dated April 18, 2006, and UK trade mark Reg. No. 1438083 dated August 17, 1990. Complainant submitted an Exhibit comprising a table of its trademark registrations in various countries.
Complainant has registered the domain names <natwest.com> and <natwest.co.uk>, and operates websites at these addresses.
Complainant asserts that the disputed domain names <ntwsonline.com> and <ntwsonlines.com> are confusingly similar to Complainant’s registered trademark NATWEST, that the suffix “online[s]” does not detract from the overall impression, that the domain names “are obvious misspellings of the the [sic] term NATWEST”, and that:
Respondent has intentionally left out the characthers [sic] “a”, “e” and “t”. When looking at the disputed domain names you automatically see NATWEST although it is not spelled out. This confusion is strengthen [sic] with the generic suffix “online” and “onlines” and the content on the websites.
Complainant asserts that Respondent has no right or legitimate interest in either of the disputed domain names. Complainant alleges that Respondent has used the domain names “to pass itself off as the Complainant in order to defraud Complainant’s customers through a fraudulent website identical to the Complainant’s [, and] to “phish” for financial information....”
Complainant asserts that Respondent registered, and is using, the disputed domain names in bad faith. Complainant alleges that the trademark NATWEST “has the status of a well-known and reputed trademark with a substantial and widespread reputation throughout the whole Community and throughout the world”, that the “awareness of the trademark NATWEST is considered, in the whole Community in general, to be significant and substantial”, and that the “considerable value and goodwill of the mark NATWEST is most likely, a large contribution to this and also what made Respondent register the Domain Names at issue here.” Complainant asserts that Respondent’s attempt to use the domain names for a phishing scam constitutes bad faith registration and use of the disputed domain names.
Respondent did not file a formal Response.
6. Discussion and Findings
The UDRP Policy requires Complainant to prove each of the following three elements in order to prevail in this proceeding:
(i) Each 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 each domain name; and
(iii) Each domain name has been registered and is being used in bad faith.
UDRP Policy, paragraph 4(a).
The Panel finds Respondent was given notice of this proceeding in accordance with the Rules. The Center discharged its responsibility under Rules paragraph 2(a) to undertake reasonable efforts to provide actual notice of the Complaint to the Respondent. The Panel finds that Respondent has been given a fair opportunity to present its case, and, as no formal Response was filed, the Panel will proceed to a decision on the Complaint. UDRP Rules paragraph 5(e).
The Panel may decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. UDRP Rules paragraph 15(a). As Respondent has defaulted, the Panel shall draw such inferences therefrom as it considers appropriate. UDRP Rules paragraph 14(b). Respondent’s default does not automatically result in a decision in favor of Complainant: Complainant must still prove each of the three elements required by Policy paragraph 4(a).
A. Identical or Confusingly Similar
Complainant asserts that it is the owner of trademark registrations around the world for the mark NATWEST. Although Complainant submitted a table listing these registrations, no copies of trademark registrations or online records from government databases were submitted with the Complaint. The Panel sua sponte accessed OHIM’s online database for trademark registration No. 4319067 and finds that Complainant is the owner of said registration for the mark NATWEST, registered on April 18, 2006. This registration date precedes the date on which the disputed domain names were registered.
Complainant does not claim to own a trademark registration in Nigeria for the mark NATWEST, and does not assert that it uses or promotes the mark in Nigeria.
Complainant asserts that its mark NATWEST is well known and famous, but submitted no evidence to establish fame of its mark. Although Complainant referred to previous UDRP decisions, UDRP decisions have no precedential value and are not a substitute for evidence of fame.
The disputed domain names begin with the letters “ntws”. Although Complainant asserts that <ntwsonline.com> and <ntwsonlines.com> are “obvious misspellings” of NATWEST, the Panel does not necessarily find “ntws” to be any obvious misspelling of NATWEST”.
Respondent’s default does not constitute an admission, nor absolve Complainant of proving each of the three elements required in the UDRP. However, in this case, Respondent’s use of the domain names to display websites identical or substantially and confusingly similar to Complainant’s website indicates to the Panel that Respondent viewed the disputed domain names to be confusingly similar to Complainant’s trademark. In addition, although Respondent did not submit a formal Response, it did receive a copy of the Complaint and sent a reply email to the Center. In this email, Respondent did not deny the allegations in the Complaint; rather, Respondent indicated a willingness to transfer the domain names in return for compensation. In light of the above, the Panel finds that Respondent concedes that the disputed domain names are confusingly similar to NATWEST, and the Panel accordingly finds that the first element of paragraph 4(a) of the Policy has been established.
B. Rights or Legitimate Interests
The Panel finds that Complainant has made a prima facie showing that Respondent had no right or legitimate interest in the domain names, Respondent has not rebutted that showing, and nothing in the record would lead the Panel to find that Respondent has any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The following constitute registration and use in bad faith under the Policy:
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.
Policy paragraph 4(b).
In this case, Respondent used the disputed domain names to display websites identical to, or substantially and confusingly similar to, Complainant’s websites. Furthermore, Complainant alleges that Respondent used the disputed domain names in an attempt to defraud Complainant’s customers and phish for financial information. The Panel finds that Complainant has shown that Respondent registered and is using the disputed domain names in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
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 names, <ntwsonline.com> and <ntwsonlines.com> be transferred to Complainant.
Jeffrey H. Kaufman
Dated: November 26, 2012