WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nevada State Bank v. datadomain.xyz Data
Case No. D2015-1635
1. The Parties
The Complainant is Nevada State Bank of Las Vegas, Nevada, United States of America (“United States”).
The Respondent is datadomain.xyz Data of New York, Alabama, United States.
2. The Domain Name and Registrar
The disputed domain name <nsbank.xyz> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 16, 2015. On September 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 16, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 28, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2015.
The Center appointed Angela Fox as the sole panelist in this matter on November 12, 2015. 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 bank operating in the state of Nevada, United States. According to its website at “www.nsbank.com”, it has been trading for more than 50 years.
The Complainant is the registered proprietor of United States federal trademark registration No. 4174370 for NSBANK in respect of banking-related software and online software in Classes 9 and 41, filed on September 2, 2011 and registered on July 17, 2012, with a first use in commerce date of July 26, 2011. The Complainant also owns United States federal trademark registration No. 2862148 for NEVADA STATE BANK for banking and related services in Class 36, filed on January 27, 2003 and registered on July 13, 2004, with a first use in commerce date of January 12, 1959. Details of both registrations were annexed to the Complaint.
The Complainant operates a website promoting its banking business at the domain name <nsbank.com>. That domain name is owned by the Complainant’s parent company, Zions Bancorporation, but it is apparent from the screenshot history on the publicly available Wayback Machine search engine that the domain name has hosted a website of the Complainant since at least as early as January, 1999.
The disputed domain name was registered on August 15, 2015. At the writing of this decision, it is in use to link to a holding page stating “NSBANK.XYZ is for sale” and inviting offers in US dollars.
5. Parties’ Contentions
The Complainant submits that the disputed domain name is confusingly similar to its NSBANK and NEVADA STATE BANK trademarks. The Complainant further submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not a licensee of the Complainant and is not otherwise authorized to use the Complainant’s trademarks. The only use being made by the Respondent is to link to a temporary landing page, which the Complainant asserts is not part of a bona fide offering of goods or services or a legitimate noncommercial use.
Finally, the Complainant contends that the disputed domain name was registered and has been used in bad faith. In particular, the Complainant asserts that the Respondent registered the disputed domain name primarily for the purpose of disrupting the Complainant’s business, and the registration appears to be intended to take advantage of the Complainant’s goodwill for commercial gain, and/or to divert customers of the Complainant. The Complainant states that at the time the Complaint was brought, the disputed domain name was in use for a website hosting links relating to financial services. The Complainant submits that the disputed domain name is liable to be used in connection with phishing and fraudulent activities, and is being used to create confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and the links on it.
The Respondent did not reply to the Complainant’s contentions and is in default. No exceptional circumstances explaining the default have been put forward. Therefore, in accordance with paragraphs 14(a) and (b) of the Rules, the Panel will decide the Complaint and shall draw such inferences as it considers appropriate from the Respondent’s default.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the panel finds that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
All three elements must be present before a complainant can succeed in an administrative proceeding under the Policy.
A. Identical or Confusingly Similar
The Complainant has proved ownership of registered trademark rights in NSBANK.
The disputed domain name comprises the element “nsbank” and the non-distinctive generic Top-Level Domain (“gTLD”) “.xyz”. The first element is identical to the Complainant’s registered NSBANK trademark. The non-distinctive domain name suffix is not capable of distinguishing the disputed domain name from the Complainant’s trademark.
The Panel finds that the disputed domain name is identical to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has made out a prima facie case that the Respondent does not enjoy a right or legitimate interest in the disputed domain name, and the Respondent has made no effort to demonstrate that it does.
There is no evidence that the Respondent has been commonly known by a name corresponding to the disputed domain name, nor any evidence of use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. Nor does there appear to have been any legitimate noncommercial or fair use.
The disputed domain name is currently in use for a page offering the domain name for sale. The Complaint indicates that it has in the past been used to host links relating to financial services. The Complainant did not provide any screenshots or other evidence of that prior use, which would have supported its assertion. In the absence of such evidence it is impossible to evaluate the nature of that alleged prior use. However, the use being made now is neither a noncommercial use, nor a use in connection with a bona fide offering of goods or services.
There is in short nothing on the facts of this case to suggest that the Respondent has a right or legitimate interest in the disputed domain name.
The Panel finds that the Complainant succeeds under the second element of the Policy.
C. Registered and Used in Bad Faith
The disputed domain name was registered on August 15, 2015. The Complainant had begun to use its NSBANK trademark in commerce in the United States on July 26, 2011, four years earlier.
As noted above, there is no evidence to support the Complainant’s assertions as to the nature of the Respondent’s prior use of the disputed domain name to host financial services-related links. Had there been such evidence, or an explanation as to why such evidence was lacking, then this point would have supported the Complainant’s case because it would have pointed to actual knowledge of the Complainant and its trademark on the part of the Respondent. However, the Respondent is based in the United States, where the Complainant trades, and it made no effort to deny knowledge of the Complainant and its trademarks, nor to put forward any good faith explanation for why it came to register a domain name that was identical to the Complainant’s distinctive trademark. These facts tend to point toward knowledge on the part of the Respondent of the Complainant and its rights.
In the Panel’s view, the circumstances indicate that the disputed domain name was indeed registered and has been used in bad faith. The use of the disputed domain name is likely to attract Internet users looking for the Complainant in light of the identity of the disputed domain name with the Complainant’s trademark. The Respondent’s display of an offer to sell the disputed domain name at the linked website indicates that its intention has been to profit commercially from that diversion of Internet users by generating a purchase of the disputed domain name. Consequently, the Panel is satisfied that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website, under paragraph 4(b)(iv) of the Policy.
Even though Internet users reaching the Respondent’s website by mistake may appreciate from the content of the website that it is not associated with the Complainant, the damage has already been done in that Internet users have been diverted as a result of the confusion generated by the Respondent’s activities.
The Panel therefore finds that the Complainant succeeds under the third element 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 name <nsbank.xyz> be transferred to the Complainant.
Date: November 17, 2015