WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nedbank Limited v. Domain Flipper / Super Privacy Service LTD c/o Dynadot / Rathish
Case No. D2018-2632
1. The Parties
The Complainant is Nedbank Limited of Johannesburg, South Africa, represented by Adams & Adams Attorneys, South Africa.
The Respondent is Domain Flipper of Madurai, Tamil Nadu, India / Super Privacy Service LTD c/o Dynadot of San Mateo, California, United States of America (“United States”) / Rathish of Madurai, Tamil Nadu, India, self-represented.
2. The Domain Name and Registrar
The disputed domain name <netbank.org> is registered with Dynadot, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 16, 2018. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 20, 2018, 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. In response to the notification by the Center of November 27, 2018, that the Complaint was administratively deficient, the Complainant filed an amended Complaint on November 30, 2018.
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, and the proceedings commenced on December 3, 2018. On December 6, 2018, the Center received an email communication from the Respondent. Upon the Complainant’s request, the proceedings were suspended for the purposes of settlement discussions between the Parties on December 11, 2018. The proceedings were reinstituted on January 10, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 22, 2019. The Response was filed with the Center on January 22, 2019.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on January 30, 2019. 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.
On February 6, 2019, the Complainant submitted a Supplemental Filing. On February 7, 2019 at the request of the Panel, the Center issued Procedural Order No. 1 to the Parties affording the Respondent five calendar days to comment on the Complainant’s assertions included in its Supplemental Filing. In response to Procedural Order No. 1, the Respondent submitted a Supplemental Filing on February 12, 2019.
4. Factual Background
The Complainant is a South African public company with its registered address in Johannesburg, South Africa. It states that it is a provider of financial and banking products and that its “Nedbank” business is one of the five largest banks in South Africa and has been in existence since 1831. In addition to being the proprietor of various NEDBANK trademarks in multiple African countries, the Complainant is the proprietor of South African registered trademark no. 1996/16368 for the word mark NETBANK, registered on October 7, 1999 in respect of various financial services. The Complainant states that it uses the NETBANK trademark in connection with its online banking facility. The Complainant notes that its website for online banking services is found at “www.netbank.nedsecure.co.za”. The Complainant has been the registrant of the domain name <netbank.co.za> since January 11, 1997. The Complainant provides evidence that in 2004 it achieved headline earnings of ZAR 1,447 million.
On November 9, 2017, the Complainant’s business banking division received an email from a person named Jennifer Coolidge who described herself as Senior Domain Broker from “TabFord” and stated “we are currently brokering [the disputed domain name]”. Said email went on to solicit interest from the Complainant to purchase the disputed domain name. The Complainant notes that its attorneys conducted searches in respect of the website of the alleged brokerage and noted that the photographs of the team members, including that of Jennifer Coolidge, appeared to be sourced from free image websites and in particular that the purported CEO of “TabFord” used the name and actual image of a politician resident in Virginia, United States. The Complainant demonstrates this fact with comparative images. The Complainant also exhibits an article, which it says is written in jest by a domain name industry website. Said article congratulates an alleged member of the “TabFord” team on being awarded the Indian Domain Brokers Association’s “Broker of the Year” award. The Complainant says that as far as it is aware, the said association does not exist. Said article also suggests that the awarded member of the “TabFord” team hides her identity and uses a fake company to operate the brokerage. The Complainant points out that the alleged award and the Respondent appear to share an Indian connection.
The Respondent appears to be a person based in Madurai, Tamil Nadu, India using the pseudonyms “dom flip”, “domfliper” or “Domain Flipper” as well as the name “Rathish”. The Complainant notes that the disputed domain name does not direct to an active website. The creation date of the disputed domain name is October 6, 2004.
On January 4, 2019, the Respondent wrote to a variety of personnel at the Complainant seeking an “update in this case” and noting the deadline for the Response. The Complainant replied requesting that all correspondence be directed to the Complainant’s attorneys and asked that the Respondent refrain from communicating with the Complainant’s personnel.
On January 8, 2019, the Respondent wrote to the Complainant’s representative stating that it had been “in the domain selling business” for more than five years and that it had owned the disputed domain name “since 2017”. The Respondent added that it had not faced legal problems before but was “aware of all legal proceedings regarding domains”. The Respondent added that it was willing to transfer the disputed domain name for a payment of USD 1,000.
On January 16, 2019, the Respondent wrote to the Complainant arguing that the term “netbank” is generic and asserting that if the Complainant owns a NETBANK trademark it should also own the corresponding domain names. The Respondent also argued that as the Complainant had spent USD 1,500 to initiate a Complaint, it could withdraw same and pay USD 1,000 to the Respondent, noting that this would no longer be possible after the deadline for filing the Response.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to a trademark in which the Complainant owns rights; that the 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.
The Complainant narrates the terms of its business and the nature of its trademarks as outlined in the factual background section above. The Complainant exhibits various advertisements and screenshots showing how its NETBANK trademark is used and submits that such mark is identical to the disputed domain name in the second level and is also confusingly similar thereto.
The Complainant asserts that it has not authorized the use of its NETBANK trademark by any of the named Respondents, adding that its trademark registration pre-dates the registration of the disputed domain name in the name of Domain Flipper or Super Privacy Service LTD c/o Dynadot. The Complainant notes that there is no evidence that any of the Respondents have been or are commonly known by the name NETBANK, or that they have acquired any trademark rights in this mark, adding that when a Google search is conducted using NETBANK, the Google search engine provides the results for “www.netbank.nedsecure.co.za”, one of the Complainant’s websites. The Complainant provides corresponding screenshot evidence of same.
The Complainant describes the various Respondents and indicates its belief that “Domain Flipper” is still the registrant of the disputed domain name and that Super Privacy Service LTD c/o Dynadot is a privacy service of the Registrar. The Complainant describes the circumstances in which it was contacted by the alleged broker of the disputed domain name in December 2017, noting its discovery that the broker and the various team photographs on the broker’s website were false. The Complainant notes that the Respondent appears to be resident in India and notes the alleged Indian connection to the broker “TabFord” as identified in the industry article.
The Complainant asserts that when the disputed domain name was offered for sale to it in December 2017 the registrant was noted at that stage as being “Domain Flipper”. The Complainant submits that the fact that the broker identified and approached the Complainant is testament to the fact that the broker and, by implication, the Respondent, recognized the Complainant’s interest in the disputed domain name. The Complainant asserts that there can be no doubt that the Respondent registered or acquired the disputed domain name primarily for the purpose of selling or otherwise transferring the disputed domain name for a valuable consideration in excess of its out-of-pocket costs directly related thereto. The Complainant notes that its interest in the disputed domain name would be self-evident to any party registering the same.
In its Supplemental Filing, the Complainant contends that it was contacted on December 6, 2018 by “Domain Flipper” using the email address previously associated with the disputed domain name and that the proceedings were accordingly suspended for purposes of settlement discussions between the Parties. The Complainant asserts that the fact that “Domain Flipper” responded indicates that it is the true registrant of the disputed domain name. The Complainant notes with reference to the correspondence between the Parties that the Respondent sought an arrangement whereby, if the matter was settled and the filing fee partially returned by the Center, the Complainant would pay such refunded fee to the Respondent. The Complainant argues that this indicates that the Respondent is well versed in domain name dispute proceedings and that it seeks to manipulate the settlement process once a Complaint has been filed in order to sell the disputed domain name for the amount of the refund. The Complainant asserts that such payment would be far in excess of the Respondent’s out-of-pocket expenses incurred in connection with the disputed domain name bearing in mind the Respondent’s admission in such correspondence that it acquired the disputed domain name in 2017.
The Complainant records the fact that despite the Complainant having attorneys acting for it, the Respondent proceeded to contact a number of the Complainant’s employees directly without copying the Complainant’s attorneys on such correspondence. The Complainant notes that it is uncertain as to how the Respondent obtained the contact details of the employees and adds that these circumstances illustrate the Respondent’s bad faith.
The Complainant concludes that despite the Respondent arguing that it does not have a trademark for NETBANK this was duly produced in evidence with the Complaint and, to the extent that the Respondent argues that it is significant that the Complainant does not own other relevant domain names to its mark, a schedule of such domain names was likewise produced showing five relevant domain names all containing the NETBANK mark in the ownership of the Complainant.
In a notably brief Response, the Respondent “Rathish” acknowledges that it is the registrant of the disputed domain name. The Respondent asserts that the Complainant has no connection with the keyword “netbank”, noting that the Complainant is named “Nedbank”. The Respondent adds that “Ned” represents the name of a person, whereas “net” is a common and generic keyword which refers to the Internet. The Respondent asserts that if the Complainant is the owner of a trademark for NETBANK then it should also be the owner of the domain names <netbank.com>, <netbank.net>, <netbank.biz>, <netbank.co> and <netbank.us>. The Respondent submits that all of such domain names are owned by different persons and concludes that the Complainant has no right to the disputed domain name.
The Panel notes in passing that the Respondent consents to the remedy requested by the Complainant but in light of the contents of the Response as noted above, the Panel assumes that this was an error.
In a brief Supplemental Filing, the Respondent largely repeats the above contentions. The Respondent asserts that it has not violated the Policy, nor has it used the Complainant’s NEDBANK trademark in the disputed domain name. The Respondent acknowledges that the Complainant’s account of the Parties’ negotiations is correct, adding that it was trying to save the Complainant some money in seeking USD 1,000 for the disputed domain name. The Respondent asks why a company which has paid the filing fee would not be willing to pay this sum to it.
The Respondent asserts that the Complainant is trying to obtain the disputed domain name without paying the Respondent for it and that they do not deserve it. The Respondent adds that in the event of the Complainant’s success in the administrative proceeding, nothing will be left for a domainer such as the Respondent except the loss of the domain name purchase and renewal fees.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed 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 respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Preliminary Issue – Identity of the Respondent
The Complainant notes that according to the WhoIs record for the disputed domain name dated March 1, 2018, the registrant of the disputed domain name was “domain flipper” with an email contact address using the “Gmail” service. The Complainant says that this registrant remained on the WhoIs record at the time of filing the Complaint, although the Panel cannot specifically identify this from the Complainant’s evidence. Nevertheless, upon registrar verification, the Registrar initially identified the registrant as “domain flipper” without specifying a contact address and, when this was queried by the Center, advised that the registrant was “Super Privacy Service LTD c/o Dynadot” having a contact address in San Mateo, California, United States. When this in turn was queried by the Center, the Registrar replied repeating that the registrant was “Super Privacy Service LTD c/o Dynadot” at the said contact address. The Response has been prepared by a person who has provided the name “Rathish”. This person quotes a contact address in India and an email address which are the same as that used by “domain flipper” as specified in the WhoIs record of March 1, 2018. Furthermore, the Respondent used such email address with the added descriptor “dom flip” to file its Supplemental Filing, although it did not sign the same or provide any further identifying information.
For completeness, and in order to ensure that the Decision may be implemented by the Registrar, the Panel has named each of these possible identities for the Respondent in this Decision. The Panel has made the reasonable assumption that the Respondent “domain flipper”, “dom flip” or “domfliper” (summarized above for convenience as “Domain Flipper”) is the true registrant of the disputed domain name and is one and the same as the Respondent “Rathish” due to the use of common contact details, both across the WhoIs and in the Respondent’s correspondence with the Center. The Panel has also assumed that the Respondent “Super Privacy Service LTD c/o Dynadot” is a privacy service provided by the Registrar and is not itself the true registrant, notwithstanding the Registrar’s subsequent identification of this entity as the registrant of the disputed domain name on two separate occasions. The Panel notes in passing that the Respondent’s attempt to conceal its identity via the use of aliases and a privacy service does not do it any credit in the circumstances of this case, as will be further discussed below.
B. Preliminary Issue – Parties’ Supplemental Filings
Paragraph 12 of the Rules provides that it is for the panel to request, in its sole discretion, any further statements or documents from the parties it may deem necessary to decide the case. Paragraph 10 of the Rules confers authority upon the Panel to determine the admissibility, materiality and weight of the evidence. Unless specifically requested by the panel, unsolicited supplemental filings are generally discouraged. Panels have repeatedly affirmed that the party submitting or requesting to submit an unsolicited supplemental filing should clearly show its relevance to the case and why it was unable to provide the information contained therein in its complaint or response.
In the present case, the Complainant filed a Supplemental Filing in which it sought to answer new matters raised by the Respondent in its Response and to deal with certain other matters which had occurred after the date of filing of the Complaint which it asserted that it could not reasonably have anticipated.
The Panel is satisfied that it is reasonable to admit the Complainant’s Supplemental Filing, given that, at the time when the Complaint was filed, the Complainant could not have anticipated the nature of the Response or the subsequent nature of subsequent correspondence, which the Respondent entered into with it. The Panel did not consider that any prejudice would be suffered by the Respondent in admitting such filing provided that the Respondent was likewise given an opportunity to put forward its own Supplemental Filing confined to matters raised in the Complainant’s filing. The Panel therefore arranged for the Center to issue Procedural Order No. 1 to the Parties. The Respondent took up the opportunity to comment upon the Complainant’s Supplemental Filing as noted in the Respondent’s contentions above. The Respondent’s Supplemental Filing was received one day later than the deadline given in Procedural Order No. 1 but the Panel does not consider that this slight delay is material in the circumstances of this case and has therefore accepted it as though filed timeously in compliance with Procedural Order No. 1.
The Panel considers that its approach to the issue of the Parties’ Supplemental Filings in this matter is consistent with the general principles contained within paragraphs 10 and 12 of the Rules in that the Parties have been treated with equality, each has been provided with a fair opportunity to put its case forward and, likewise, each has taken up such opportunity.
C. Identical or Confusingly Similar
There are two parts to the inquiry under the first element of the Policy. The Complainant must demonstrate both that it has rights in a trademark and that the disputed domain name is identical or confusingly similar to such trademark.
In the present case, the Panel finds that the Complainant has UDRP-relevant rights in its registered trademark for the word mark NETBANK as described in the factual background section above. The generic Top-Level Domain (“gTLD”) of the disputed domain name, in this case, “.org” is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.
In these circumstances, the comparison is between the second level of the disputed domain name and the Complainant’s NETBANK mark. Such mark is alphanumerically identical to the second level of the disputed domain name and accordingly the Panel finds that the Complainant’s trademark is confusingly similar to the disputed domain name. The first element under the Policy has therefore been established.
D. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain name:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
The consensus of previous decisions under the Policy is that a complainant may establish this element by making out a prima facie case, not rebutted by the respondent, that the respondent has no rights or legitimate interests in a domain name.
In the present case, the Panel finds that the Complainant has established the requisite prima facie case. The Complainant demonstrates that it registered the NETBANK trademark in 1999 and has used it since at least 1997. The Complainant states that it has been unable to identify any rights for this term which the Respondent might possess, notably on the provided Google search where the results refer principally to the Complainant. The Complainant also submits that it has found no evidence that the Respondent is commonly known by the NETBANK name and explains that it has not authorized the Respondent to register or use the disputed domain name. In these circumstances, the burden of production shifts to the Respondent to bring forward relevant evidence of its rights or legitimate interests in the disputed domain name.
The essence of the Respondent’s case is that the term “netbank” is a generic phrase and refers to any Internet bank. The Respondent has however failed to provide any evidence whatsoever supporting such contention or to take issue with the reach or extent of the Complainant’s NETBANK trademark, the Complainant’s use of such mark over a long period or the Complainant’s Google search which it placed in evidence with a view to demonstrating the goodwill which it claims to possess in the term.
The Respondent’s use of the disputed domain name is clearly commercial in nature, given that the Respondent attempted to extract payment from the Complainant during settlement negotiations and, furthermore, expressly states that its business is the sale of domain names. However, other than being a “domainer”, the Respondent does not provide any explanation for its registration of the disputed domain name, does not set out any specific claim to have rights or legitimate interests therein and, in particular, does not provide any evidence of being commonly known by such name or of demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services.
Although it seeks to rely upon a dictionary meaning for the phrase “netbank”, the Respondent has been unable to show that the disputed domain name has been genuinely used, or at least demonstrably intended for use in connection with its relied-upon dictionary meaning and not to trade off third-party trademark rights. The Respondent’s allegation that the Complainant is not the only party entitled to use the term “netbank” does not avail it since, in making such allegation, it is neither asserting nor demonstrating its own rights and legitimate interests but rather is suggesting that such third parties might be able to claim such rights and interests. This is not what the Policy requires of the Respondent in connection with the second element (see, for example, the discussion in CBS Broadcasting, Inc. v. Gaddoor Saidi, WIPO Case No. D2000-0243).
Significantly, the Respondent has entirely failed to explain, comment upon or distance itself from the Complainant’s evidence of the approach made to it regarding the disputed domain name by a broker with an apparently false identity and an apparent connection to the Respondent’s country of origin. The approach itself suggests that the Complainant and its rights were, more probably than not, specifically targeted at around the time when the Respondent admits that it acquired the disputed domain name, namely in 2017. This does not strike the Panel as the approach of an investor in generic words or phrases in domain names, which it makes available for general sale. Indeed, there is no evidence that the Respondent has registered other words and phrases in domain names along the lines commonly put forward by “domainers” to demonstrate their business model. The Respondent’s failure to address the issue put forward by the Complainant, and at the very least to deny any involvement in it, is fatal to the Respondent’s case on rights and legitimate interests in the Panel’s opinion.
In all of the above circumstances, the Panel finds on the balance of probabilities that the Complainant has proved that the Respondent has no rights or legitimate interests in the disputed domain name and accordingly that the second element under the Policy has been established.
E. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that you have registered or you have 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 your documented out of pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online 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”.
In the present matter, the Complainant’s case focuses on paragraph 4(b)(i) of the Policy. The Complainant suggests that there are circumstances indicating that the Respondent registered the disputed domain name primarily to sell it to the Complainant for consideration in excess of the Respondent’s documented out of pocket costs. This is evidenced by, first, the Respondent’s description of being in the “domain selling business”, secondly, the Respondent’s attempt to seek substantial financial consideration for the disputed domain name in the sum of USD 1,000 during settlement negotiations, and thirdly, the previous approach made by a broker to the Complainant attempting to sell the disputed domain name. Such approach took place when the registrant was “Domain Flipper” and in the same year that the Respondent admits to having acquired the disputed domain name, notwithstanding its date of creation. With regard to this last point, the Complainant produces evidence tending to suggest that the “broker” who approached it does not exist, has actively concealed its identity with the use of stock or third party photographs and appears to have a connection to the Respondent’s country of origin. The approach and concealment, if it be linked to the Respondent by the timing of its acquisition of the disputed domain name and the country of origin, speaks of a bad faith intent on the Respondent’s part.
It should also not be overlooked that the Respondent itself has attempted to conceal its own identity by the use of various aliases and a privacy service. While privacy services can have legitimate uses, a panel may take account of the respondent’s use of such a service when assessing registration and use in bad faith in appropriate cases. Such cases can include, for example, where the registrant’s true identity has not been revealed upon verification by the Registrar. In the present case, the Respondent has only supplied a partial identity and appears to have instructed or arranged for its Registrar to disclose the privacy service itself as the registrant of the disputed domain name when the Complaint was filed. When this is viewed in the context of multiple registrant aliases and the contemporaneous approach to the Complainant by a “broker” which itself had taken steps to conceal its identity, the Panel considers that registration and use in bad faith may be inferred.
Turning to the Respondent’s case, the Response does not make any serious attempt to address the allegations made by the Complainant. The core of the Respondent’s approach is an argument that “netbank” is a phrase combining two dictionary words and that others use the term in several different domain names. That may be so, but the term is also a trademark of long standing which belongs to the Complainant and, in the present case, there is evidence on the record of not one but two attempts made by the Respondent (and/or the “broker” whom the Panel finds is likely to have either been the Respondent or to have been acting on its behalf) to sell the disputed domain name specifically to the Complainant. This evidence speaks to the Panel of the Respondent having had prior knowledge of the Complainant’s trademark and an intent to target this upon its acquisition of the disputed domain name.
The Respondent’s failure to engage with the Complainant’s evidence regarding the specific approach made to it in the same year as the Respondent’s admitted acquisition of the disputed domain name is of considerable significance to the outcome of this case. Assuming that the Respondent had a genuine belief that the disputed domain name was a dictionary phrase, why would the Respondent not seek to deny any involvement whatsoever in such a targeted and clandestine attempt to sell the disputed domain name to the Complainant and in any apparent or alleged connection between it and the “broker”? Furthermore, if acting in good faith, why would the Respondent take the opportunity, when a complaint such as the present Complaint was filed against it, to attempt to extract part of the Complainant’s refundable filing fee from the Complainant after the Complainant’s trademark rights and its cause for complaint had been placed before it? Why, if acting in good faith, would the Respondent be sufficiently persistent in its attempts to sell the disputed domain name to the Complainant that it would seek to bypass the Complainant’s representatives and approach members of the Complainant’s staff directly? The Panel does not know the answers to these questions and the Respondent’s failure to address them when they have been unequivocally placed in issue by the Complainant does not suggest a good faith motivation on the Respondent’s part in connection with the registration and use of the disputed domain name.
As will be noted from the discussion above, the Panel has taken the Parties’ settlement negotiations into consideration in its assessment of the third element of the Policy. The view was expressed by panels in some early decisions under the Policy that such discussions should be excluded as privileged, particularly if made between legal representatives. Nevertheless, over the intervening years, a consensus has emerged that statements made in settlement discussions are admissible in proceedings under the Policy. It is often noted that what passes between the parties may be the only or at least the principal means of demonstrating a respondent’s bad faith (see, for example, NB Trademarks, Inc. v. Domain Privacy LTD and Abadaba S.A., WIPO Case No. D2008-1984 and the cases cited therein). In the present case, the Panel adds that in its opinion the facts would have led to a finding of registration and use in bad faith even if the offer made in settlement negotiations, and the Respondent’s direct approach to the Complainant’s staff, had been excluded from consideration. It is the Respondent’s failure to distance itself from the alleged specific targeting of the Complainant’s rights in the 2017 approach, which is the most compelling factor and which weighs most clearly against the Respondent in the balance along with the other factors discussed above.
In all of the above circumstances, the Panel concludes that the disputed domain name was registered and has been used in bad faith and accordingly that the third element under the Policy has been established.
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 <netbank.org> be transferred to the Complainant.
Andrew D. S. Lothian
Date: February 18, 2019