WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amegy Bank National Association v. Whois Agent / ICS INC.
Case No. D2014-1209
1. The Parties
The Complainant is Amegy Bank National Association of Houston, Texas, United States of America (“US”), represented by Callister Nebeker & McCullough, US.
The Respondent is Whois Agent of Kirkland, Washington, US / ICS INC. of Grand Cayman, United Kingdom of Great Britain and Northern Ireland (“UK”).
2. The Domain Name and Registrar
The disputed domain name <amaegybank.com> is registered with eNom (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 14, 2014. On July 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 14, 2014, the Registrar 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 16, 2014, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on July 18, 2014.
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 the Respondent of the Complaint, and the proceedings commenced on July 21, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 12, 2014.
The Center appointed Eva Fiammenghi as the sole panelist in this matter on August 26, 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
The Complainant, a subsidiary of Zions Bancorporation Company, is the owner of the following trademarks registered in the United States:
- AMEGY BANK, registered on July 26, 2005 - registration No. 2,979,655 – class 36
- AMEGYBANK (Stylized), registered on June 13, 2006 - registration No. 3,105,196 – class 36
The Complainant declares that it has been using its trademarks AMEGY BANK and AMEGYBANK (Stylized) in commerce since at least as early as January 26, 2005.
The Respondent registered the disputed domain name <amaegybank.com> on September 17, 2012.
5. Parties’ Contentions
The Complainant argues that the disputed domain name is confusingly similar to its AMEGY BANK trademarks.
The disputed domain name contains the AMEGY BANK trademark in its entirety with the addition of one single letter, “a.”
The Respondent is not a licensee of the Complainant and there is no evidence to suggest that the Respondent has registered the disputed domain name to advance legitimate interests.
The Complainant has never licensed or otherwise permitted the Respondent to use its trademark or to register any domain name including its trademark.
Finally, the Complainant argues that the disputed domain name was registered and used by the Respondent in bad faith.
The Complainant requests that the disputed domain name be transferred to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must prove that each of the three following elements is satisfied:
(i) The dispute domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.A);
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name (see below, section 6.B.); and
(iii) The disputed domain name has been registered and is being used in bad faith (see below, section 6.C).
Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.
Pursuant to paragraph 15(a) of the Rules, the Panel shall 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. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate.
A. Identical or Confusingly Similar
The Complainant has shown it owns trademark rights in the AMEGY BANK trademark.
The disputed domain name <amaegybank.com> is confusingly similar to the Complainant’s trademark AMEGY BANK. The sole addition of the letter “a” in between the letters “m” and “e” in the Complainant’s trademark does not eliminate the confusing similarity. This kind of “typosquatting” is based on confusion resulting from typing errors commonly made by Internet users. (See Wikimedia Foundation Inc. v. Kevo Ouz a/k/a Online Marketing Realty, WIPO Case No. D2009-0798).
In view of the above, the Panel finds that the disputed domain name registered by the Respondent is confusingly similar to the Complainant’s trademark, in which the Complainant has demonstrated, to the satisfaction of the Panel, that it has rights and commercial use of the same for several years.
The first element of the Policy has, therefore, been met.
B. Rights or Legitimate Interests
In order to determine whether the Respondent has any rights or legitimate interests in respect of the disputed domain name (paragraph 4(c) of the Policy), the Complainant has made an adequate prima facie showing that the Respondent does not have rights or legitimate interests in respect of the disputed domain name.
The Complainant declares that the Respondent has not authorized or licensed to use the disputed domain name.
The Respondent did not come forward with any evidence that it has any rights or legitimate interests in respect of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name.
The second element of the Policy has, therefore, been met.
C. Registered and Used in Bad Faith
Regarding the bad faith requirement, paragraph 4(b) of the Policy lists four examples of acts, which prima facie constitute evidence of bad faith. However, this list is not exhaustive, but merely illustrative.
Paragraph 4(b)(iv) of the Policy is particularly relevant to the present case and provides that there is evidence of bad faith in the following circumstances:
“(iv) by using the domain name, the [Respondent] has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] website or location or of a product or service on its web site or location.”
Based on the record in the case file, the Panel considers that the Respondent, by registering and using the disputed domain name incorporating the Complainant’s registered trademark AMEGY BANK, is in effect attempting to attract the customers to its web page sponsoring links to various banking related and other search queries, which identify services that are identical or similar to the type of services offered by the Complainant under its registered marks.
The Panel finds it likely that Internet users and consumers think that the Respondent is, in some way or another, connected to, sponsored by or affiliated with the Complainant and its business; or that the Respondent’s activities are approved or endorsed by the Complainant. None of which, on the basis of the record in the case file, is, in fact, the situation. Such misleading consequences, in the view of the Panel, are indicative of bad faith on the part of the Respondent.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled.
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 <amaegybank.com> be transferred to the Complainant.
Date: August 27, 2014