WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dollar Bank, Federal Savings Bank v. Liu Yuan
Case No. D2016-0455
1. The Parties
The Complainant is Dollar Bank, Federal Savings Bank of Pittsburgh, Pennsylvania, United States of America, represented by Metz Lewis Brodman Must O'Keefe LLC, United States of America.
The Respondent is Liu Yuan of Xuzhou, Jiangsu, China.
2. The Domain Name and Registrar
The disputed domain name <dollarbnak.com> ("Disputed Domain Name") is registered with 22net, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 7, 2016. On March 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 9, 2016, 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.
On March 10, 2016, the Center transmitted an email to the Complainant, requesting the Complainant to amend the Complaint to reflect the correct Respondent's name. On March 11, 2016, the Complainant submitted the amended Complaint.
On March 10, 2016, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On March 10, 2016, the Complainant submitted its request that English be the language of the proceeding. The Respondent did not submit its comments within the specified due date.
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 and 4, the Center formally notified the Respondent of the Complaint in English and Chinese, and the proceeding commenced on March 17, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 6, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 8, 2016.
The Center appointed Kar Liang Soh as the sole panelist in this matter on April 21, 2016. 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 United States bank corporation and owns United States trademark registration nos 3539973 and 3562865 for DOLLAR BANK and DOLLARBANK.COM respectively. Trademark registration nos 3539973 and 3562865 were registered on December 2, 2008 and January 20, 2009 respectively.
Very little information on the Respondent is available in the present proceeding beyond the WhoIs details associated with the Disputed Domain Name. The Respondent appears to be an individual based in China. The Respondent's address and facsimile number provided in the WhoIs appear invalid. Attempts to deliver the Written Notice to the Respondent by both courier and facsimile failed.
5. Parties' Contentions
The Complainant contends that:
a) The Disputed Domain Name is confusingly similar to the Complainant's trademark as it incorporates the trademark DOLLAR BANK in its entirety except for the reversal of the two letters "n" and "a" in "bank". The Disputed Domain Name contains a common or obvious misspelling of the trademark DOLLAR BANK which remains the dominant or principal component of the Disputed Domain Name;
b) The Respondent has no rights or legitimate interests in the Disputed Domain Name. The Complainant has not granted any license, agency or permission for the Respondent to use the Disputed Domain Name. The Respondent is also not commonly known by a name that consists in whole or in part of the wording "Dollar Bank". The Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name. Rather, the Respondent is using the Disputed Domain Name to mislead and deceive consumers into believing that they are dealing with the Complainant; and
c) The Respondent has registered the Disputed Domain Name in an attempt to attract Internet users to the Respondent's website for commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Respondent's website. The intentional misspelling of the trademark DOLLAR BANK in the Disputed Domain Name is an attempt to deceive users. Further, the Website imitates the services in the Complainant's line of business through the use of images on the Website.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. As the language of the Registration Agreement for the Disputed Domain Name is Chinese, the default language of this proceeding is Chinese. The Complainant has requested that English be the language of the proceeding. Having considered the circumstances of this case, the Panel allows the Complainant's request, having taken into account the following factors:
a) The entire Website was in English and demonstrated that the Respondent has a working understanding of the English language;
b) The Respondent did not respond to the Complaint;
c) The Respondent, did not respond to or comment on the Complainant's request that English be adopted as the language of the proceeding; and
d) Requiring the Complaint be translated into Chinese would lead to an unnecessary delay in the proceeding and place an unnecessary burden on the Complainant.
In order to succeed in this proceeding, the following limbs of paragraph 4(a) of the Policy must be established:
(i) The Disputed Domain Name is identical or confusingly similar to the Complainant's trademark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) The Disputed Domain Name was registered and is being used in bad faith.
A. Identical or Confusingly Similar
Based on the evidence of the trademark registrations in the United States of America, the Panel is satisfied that the Complainant owns rights in the service trademark DOLLAR BANK.
The Disputed Domain Name is nearly identical to the trademark DOLLAR BANK except for the reversal of the letters "n" and "a". The Panel finds that the overall impression of the Disputed Domain Name conveyed is the trademark DOLLAR BANK and hold that the Disputed Domain Name is confusingly similar to the trademark DOLLAR BANK. The Panel's finding is supported by numerous UDRP panels have found confusing similarity when the principal component of the domain name is a misspelling of a trademark by the addition, deletion, substitution or reversal of the order of letters in a trademark. (Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings, WIPO Case No. D2004-0971; Yurtici Kargo Servisi A.S. v. Yurticicargo Yurticikargo, WIPO Case No. D2003-0707; CareerBuilder, LLC v. Azra Khan, WIPO Case No. D2003-0493).
In the circumstances, the first limb of paragraph 4(a) of the Policy is established.
B. Rights or Legitimate Interests
The Complainant is only required to establish a prima facie case that the Respondent lacks rights to or legitimate interests in the Disputed Domain Name. The burden then shifts to the Respondent to produce appropriate evidence to demonstrate otherwise.
The Complainant has confirmed that it did not license or authorize the Respondent to use the trademark DOLLAR BANK, or to apply for or use any domain name incorporating the same. The Complainant also confirmed that the Respondent is not affiliated with the Complainant in any way. There is no evidence before the Panel to indicate that the Respondent is commonly known by the Disputed Domain Name or that the Respondent had used the Disputed Domain Name for a bona fide offering of goods or services. In particular, the Website provides links which are clearly associated with banking services. The Panel accepts that the Complainant has established a prima facie case that the Respondent lacks rights to or legitimate interests in the Disputed Domain Name.
As no Response was filed, the prima facie case remains unchallenged and the Panel holds that the second limb of paragraph 4(a) of the Policy is also established.
C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy identifies the following example of bad faith registration and use which satisfies the third limb of paragraph 4(a) of the Policy:
"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."
The Complainant claimed that the Respondent has attempted to attract for commercial gain Internet users to the Website by creating a likelihood of confusion with the trademark DOLLAR BANK as to the source, sponsorship, affiliation, or endorsement of the Website pursuant to paragraph 4(b)(iv) of the Policy. Pursuant to paragraph 10(a) of the Rules, the Panel considers itself competent to independently visit the Website in view of the absence of a Response (Société des Produits Nestlé SA v. Telmex Management Services, WIPO Case No. D2002-0070). Accordingly, the Panel visited the Website and noted that its homepage also provided prominent links entitled "Personal Finance", "Credit", "Debt", "Loans", "Currency", "Mortgages", "Financial Planning" and "Budgeting" under the heading "Related Topics" alongside the other content identified in the Complaint. The homepage also presented links to other websites under another heading "Most Popular Sites for BANKING". It is highly improbable that a website purportedly associated with commercial services, in this case, banking services, would offer links to third parties without any intention for commercial gain.
Based on the foregoing and the lack of a Response, the Panel draws an adverse inference that the links are provided with an intention to attract Internet users for commercial gain and finds that the facts herein falls within the circumstances outlined in paragraph 4(b)(iv) of the Policy. The Panel accordingly holds that the third limb of paragraph 4(a) of the Policy is also made out.
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, <dollarbnak.com>, be transferred to the Complainant.
Kar Liang Soh
Date: May 21, 2016