WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Comerica Bank v. Kimberly Barnes
Case No. D2014-1052
1. The Parties
Complainant is Comerica Bank of Dallas, Texas, United States of America, represented by Bodman LLP, United States of America.
Respondent is Kimberly Barnes of Flagstaff, Arizona, United States of America.
2. The Domain Name and Registrar
The disputed domain name <comerixa.com> is registered with Network Solutions, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 18, 2014. On June 19, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 19, 2014, the Registrar 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 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 July 4, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 24, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on July 29, 2014.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on August 8, 2014. 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 is a financial services company headquartered in Dallas, Texas, United States of America. It is among the largest U.S. holding companies. In addition to Texas, Complainant has bank locations in Arizona, California, Florida and Michigan, and businesses operating in other states, as well as Canada and Mexico.
Complainant owns numerous U.S. Trademark registrations for its trademarks and service marks, including:
Registration No. 1,251,846 for the service mark COMERICA for use in connection with "banking services," registered September 20, 1983 and claiming a first use date of February 26, 1982;
Registration No.1,776,041 for the service mark COMERICA and Design for use in connection with "banking services," registered June 8, 1993 and claiming a first use date of June 18,1992.
Complainant also owns the domain names <comerica.com>, <comerica.net> and <comerica.org>.
The disputed domain name was registered on January 25, 2014 and directs Internet users to a parking page with links to financial services.
5. Parties' Contentions
Complainant submits that its mark is well-known and had been in use by Complainant for over 30 years by the time Respondent registered the disputed domain name, that the disputed domain name is identical or confusingly similar to Complainant's registered trademarks, that Respondent has no rights or legitimate interests in the disputed domain name and that the disputed domain name was registered and is being used in bad faith.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is identical to Complainant's trademark except for the use of the letter "x" in place of the second letter "c" in Complainant's mark. This is likely to be a common typographical error made by consumers attempting to access the website of Complainant, as the letters "x" and "c" are situated next to each other on a standard QWERTY keyboard. This one letter difference is insufficient to distinguish the disputed domain name from Complainant's mark.
The Panel finds that the disputed domain name is confusingly similar to Complainant's trademark.
B. Rights or Legitimate Interests
Based on previous UDRP decisions, "a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP." See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1.
Complainant's allegations in the Complaint and evidence submitted on this issue are sufficient to make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant's trademark registrations all issued prior to the registration of the disputed domain name and are prima facie evidence of the validity of the marks, the registration of the marks, the owner's ownership of the marks, and of the owner's exclusive right to use the registered marks in commerce on or in connection with the goods or services specified in the certificate. 15 U.S. Code (U.S.C.) Section 1057(b). The registrations also constitute constructive notice of Complainant's claim of ownership of the marks as of the date of registration. 15 U.S.C. Section 1072.
Respondent has no relationship with Complainant and has no permission from Complainant to use Complainant's trademark or any domain name incorporating that trademark. There is no evidence that Respondent is commonly known by the disputed domain name or had used or demonstrated preparations to use the domain name in connection with a bona fide offering of goods or services.
The disputed domain name resolves to a parking page with links to financial services that are similar to the financial services provided by Complainant.
The Panel finds that Respondent lacks any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant's documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant's website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the registrant's website or location or of a product or service on the registrant's website or location. (Policy, paragraph 4(b)).
The factors delineated in the Policy, paragraph 4(b), as supporting bad faith registration and use are "without limitation."
Complainant's U.S. Trademark registrations were registered in 1983 and 1993, and claim dates of first use as early as 1982 and 1992. The registration dates and first use dates occurred at least over 20 years prior to Respondent's registration of the disputed domain name. The disputed domain name incorporates Complainant's mark in its entirety except for one typographical error and resolves to a parking page with sponsored links offering financial services similar to those offered by Complainant. This evidences Respondent's attempt to attract, for commercial gain, Internet users to Respondent's website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of Respondent's website or location or of a product or service on Respondent's website or location. In addition, Respondent's use of the disputed domain name to provide links or leads to companies providing financial services that are related to and/or compete with Complainant's goods and services indicates that it is likely that Respondent had knowledge of Complainant's rights in its mark at the time of registering the disputed domain name.
The Panel finds that Respondent has registered and is using the disputed domain name 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, <comerixa.com> be transferred to the Complainant.
Lynda J. Zadra-Symes
Date: August 22, 2014