WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse Aktiengesellschaft v. WhoisGuard, Inc. / Name Redacted 1
Case No. D2021-0509
1. The Parties
The Complainant is BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse Aktiengesellschaft, Austria, represented by Binder Grösswang Rechtsanwälte GmbH, Austria.
The Respondent is WhoisGuard, Inc. / Name Redacted.
2. The Domain Name and Registrar(s)
The disputed domain name <ebk-online.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 18, 2021 regarding two domain names. On February 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 19, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the two domain names, which differed from the named Respondent, and contact information in the Complaint. The Center sent an email communication to the Complainant on February 23, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant requested to continue the proceeding only against the disputed domain name <ebk-online.com> and filed an amended Complaint on February 24, 2021.
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 February 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 18, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 19, 2021.
On March 21, 2021, the Center received an informal communication from an individual (who’s name corresponds to the name of the registrant of the disputed domain name) claiming that he is victim of identity theft.
The Center appointed Andrea Mondini as the sole panelist in this matter on March 24, 2021. 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 one of the largest banks in Austria. Since 1996, it offers online banking services under the domain name <easybank.at>.
The Complainant is the owner of several registrations for the trademark EASYBANK, including the European Trade Mark Registration No. 387233, for EASYBANK, registered as a word mark on 25 February 2005, and Austrian Trademark Registration No. 273501, for the trademark and logo EASYBANK, registered on June 24, 2016..
The disputed domain name was registered on November 30, 2020 and does not resolve to an active website. The disputed domain name was used to offer unsolicited and fraudulent financial services.
5. Parties’ Contentions
The Complainant contends in essence:
- That the disputed domain name is confusingly similar to its trademark EASYBANK because “ebk” is an abbreviation of the Complainant’s trademark “easybank”, so that customers think of the Complainant’s trademark when they see the abbreviation “ebk”, and that the descriptive word “online” does not dispel confusing similarity;
- That the Respondent has no rights or legitimate interests in the disputed domain, since the Complainant never granted a license or other right to the Respondent;
- The victim of a fraud related to the use of the disputed domain name transferred the purchase price to an unknown perpetrator and suffered a loss of EUR 7,700;
- That the Respondent also registered the domain names <easybk-online.com> and <easy-bkonline.com> and also used them to fraudulently offer shares to Internet users;
- That the Respondent registered and is using the disputed domain name in bad faith to make customers believe that they are dealing with the Complainant and thereby defrauding consumers intending to buy shares.
The Respondent has not submitted a formal response.
However, on March 21, 2021, the Center received an informal communication from an individual (who’s name corresponds to the name of the registrant of the disputed domain name) claiming that he is victim of identity theft.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, a complainant must establish each of the following elements:
(i) The disputed domain name is identical or confusingly similar to the 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. Identical or Confusingly Similar
The Complainant has shown that it holds several registrations for the trademark EASYBANK. Previous UDRP panels have held that a domain name containing the abbreviation of a complainant’s trademark can be confusingly similar to that trademark (see e.g., Harness Racing Australia v. Acronym Wiki Pty Ltd, WIPO Case No. DAU2011-0007, where the domain mane <hra.com.au> was found to be confusingly similar to the name “Harness Racing Australia”). In the present case, it must also be taken into account that the Respondent uses the Complainant’s logo in identical form on its forms fraudulently offering to sell shares, and that the Complainant has shown that Internet users have actually been confused and defrauded. See generally in this respect WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) section 1.15 stating “panels have however taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name.” Moreover, the addition of the descriptive term “online” does not prevent a finding of confusing similarity since the Respondent used the disputed domain name to sell shares online.
Accordingly, under the specific circumstances of the present case, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant contends, credibly, that it has not authorized the Respondent to use the disputed domain name, and that there is no relationship whatsoever between the Parties. Moreover, the Complainant has provided credible evidence that the Respondent is misusing the disputed domain name for fraudulent activities.
In the absence of a response, the Panel finds that the Complainant made a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name, which has not been rebutted by the Respondent.
Furthermore, the undisputed evidence on record reflects that the disputed domain name was registered by an identity thief using the personal details of a third party without authorization.
Therefore, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant has credibly shown that the Respondent registered and is using the disputed domain name in bad faith to make Internet users believe that they are dealing with the Complainant and thereby defrauding them by purporting to sell them shares. This is corroborated by the fact that the “real” individual named as the registrant of the disputed domain name confirmed to be a victim of identity theft and nothing to do with the disputed domain name. The evidence on record shows that the Respondent misused the identity of a third party to send fraudulent emails. (And even if this identity theft claim is not true, it would further show misleading conduct on the part of the Respondent.) Moreover, the Complainant has shown that the Respondent also registered similar domain names (which were the subject matter of previous UDRP cases) to fraudulently sell shares.
Under these circumstances, the panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The Panel therefore finds that the Complainant has satisfied the requirement under 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 disputed domain name <ebk-online.com> be transferred to the Complainant.
Date: April 7, 2021
1 The Respondent appears to have used the name of a third party when registering the disputed domain name. In light of the potential identity theft, the Panel has redacted the Respondent’s name from this decision. However, the Panel has attached as Annex 1 to this decision an instruction to the Registrar regarding transfer of the disputed domain name, which includes the name of the Respondent. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated Annex 1 to this decision shall not be published due to the exceptional circumstances of this case. See Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted, WIPO Case No. D2009-1788.