WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ally Financial Inc. v. Wemedia Ent
Case No. D2018-0330
1. The Parties
The Complainant is Ally Financial Inc. of Detroit, Michigan, United States of America (“United States”), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Wemedia Ent of Lagos, Nigeria.
2. The Domain Name and Registrar
The disputed domain name <allybkintl.com> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2018. On February 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 14, 21 and 23, 2018 the Registrar transmitted by emails 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 18, 2018. On March 16, 2018, the Center sent an email communication to the Parties indicating that the written document of the Notification of Complaint was not sent to the Respondent and would be transmitted again and that the new due date for Response was March 29, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 3, 2018.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on April 12, 2018. 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 was founded in 1919 by General Motors Corporation as the General Motors Acceptance Corporation (GMAC) to provide financing to automotive customers. Over the years, the Complainant expanded its services to include insurance, online banking, investment services, mortgage operations, and commercial finance. In 2009, GMAC rebranded itself as Ally and became a public company.
The Complainant is one of the top auto lenders in the United States by volume and reported net income of USD 1.6 billion for 2016 for its online banking (Ally Bank), vehicle financing and dealer services (Ally Auto), investing and wealth management (Ally Invest) and commercial finance (Ally Corporate Finance).
The Complainant owns multiple trademark registrations across various jurisdictions, such as:
ALLY, United States trademark No. 3667814, registered on August 11, 2009, in class 36;
ALLY, United States trademark No. 4264894, registered on Dec. 25, 2012, in class 35;
ALLY, European Union Trademark No. 013056941, registered on November 4, 2014, in class 36;
ALLY, International trademark No. 981147, registered on September 16, 2008, in class 36;
ALLY BANK, United States trademark No. 3722309, registered on December 8. 2009, in class 36;
ALLY BANK, International trademark No. 1074075, registered on March 29, 2011, in class 36.
The Complainant has Internet presence through its websites and owns several domain names, including
<ally.com> and <allyfinancial.com>. The domain name <ally.com> received over 2.5 million visitors in May 2016. Alexa.com ranks <ally.com> as the 609th most popular website in the United States and is ranked 2,871st globally.
The Registrar indicates October 25, 2018 as the date of expiry of the Domain Name, and that the Domain Name was placed on “clientHold” status (meaning, inter alia, that the registrar would not return WhoIs results) on January 6, 2018 due to a fraud report.
The Domain Name used to resolve to a website that was imitating the Complainant’s website in an attempt to phish for users’ personal information. At the time of the drafting this decision, the Domain Name resolved to an error page.
5. Parties’ Contentions
The Complainant provides trademark registrations, and argues that the Domain Name reproduces the Complainant’s trademark. The Respondent has merely added the abbreviated terms “bk” (shortened form of the term “bank”) and “intl” (shortened form of the term “international”) to the Complainant’s trademark. It only increases the confusing similarity between the Domain Name and the Complainant’s trademark. Additionally, the Respondent used the Domain Name to imitate the Complainant’s website and send phishing emails. It suggests that the Respondent intended the Domain Name to be confusingly similar to the Complainant’s trademark.
The Complainant argues that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the Complainant’s trademark. The Respondent has no prior rights or legitimate interests in the Domain Name. According to the Complainant, the Respondent is not commonly known by the Domain Name. The Respondent is not making a fair or legitimate noncommercial use of the Domain Name. On the contrary, prior to the takedown of the Domain Name’s website, the Respondent had attempted to create the impression that the website was authorized and administered by the Complainant in order to fool visitors to log on and make a payment to the Respondent, as part of the Respondent’s phishing scheme.
As to bad faith, the Complainant argues that it is clear evidence of bad faith registration and use that the Respondent has registered and used the Domain Name for phishing attack.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark ALLY.
The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name is confusingly similar to the Complainant’s trademark. The additions of “bk” (short for “bank”) and “intl” (short for “international”) do not provide sufficient distinction from the Complainant’s mark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, third edition (“WIPO Overview 3.0”), section 1.8: “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.”
For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain “.com”.
The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing its trademarks or otherwise make use of its marks. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. As documented by the Complainant, the Domain Name has been used to create the impression that the website was authorized and administered by the Complainant in order to fool visitors to log on and make a payment to the Respondent. This is not bona fide offering nor a legitimate noncommercial or fair use within the meaning of the Policy. See WIPO Overview 3.0, section 2.13.1: “Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.”
The Panel finds that the Complainant has made out an unrebutted case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Based on the Respondent’s actions, it is likely that it was aware of the Complainant’s trademark and its business when it registered the Domain Name. The Respondent’s use of the Domain Name for phishing attacks is clear evidence of both bad faith registration and use.
For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of the paragraph 4(a)(iii) 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 Domain Name <allybkintl.com> be transferred to the Complainant.
Date: April 17, 2018