WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ing Groep N.V. v. Contact Privacy Inc. Customer 1249728894 / Ing Capital Group
Case No. D2021-2579
1. The Parties
Complainant is Ing Groep N.V., Netherlands (hereinafter “Complainant”), represented by Elzaburu, Spain.
Respondent is Contact Privacy Inc. Customer 1249728894, Canada / Ing Capital Group, Belize (hereinafter “Respondent”).
2. The Domain Name and Registrar
The disputed domain name <ing.capital> is registered with Google LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 9, 2021. On August 10, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 10, 2021, 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. The Center sent an email communication to Complainant on August 12, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on August 16, 2021.
The Center verified that the Complaint together with the amended Complaint (hereinafter, 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 Respondent of the Complaint, and the proceedings commenced on September 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 27, 2021. Respondent sent an informal communication on August 18, 2021. A third party communication was received be the Center on September 14, 2021. The Center sent a communication to the third party on September 15, 2021, requesting clarification regarding its relationship (if any) with the Respondent. The third party did not respond to the Center’s communication. Accordingly, on October 6, 2021, the Center informed the Parties it would proceed with the panel appointment process.
The Center appointed M. Scott Donahey as the sole panelist in this matter on October 19, 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
Complainant is a banking and financial institution with over 57,000 employees serving more than thirty-nine million customers, corporate clients, and financial institutions. Having operations in more than forty countries, Complainant offers products and services such as savings, payments, investments, loans, and mortgages. In 2020, Complainant had a net result of EUR 2.5 billion.
Complainant’s shares are listed in stock exchanges in Amsterdam, Brussels, and New York. In Germany more than 9.5 million customers utilize Complainant’s services, making it have one of the largest customer bases in the country, and the German business magazine Euro named Complainant “Germany’s most popular bank in 2021”. In ING Groep N.V. v. Daniel Rolnik, WIPO Case No. DES2020-0004, the Panel declared that the trademark ING was highly distinctive and famous in Spain.
The disputed domain name resolves to a website, which is translated into the Spanish language, and which includes a contact telephone number beginning with a Spanish prefix, complaints have been filed by individual investors in Spain, and the Spanish National Securities Market Commission has published a warning related to the website complaints on July 19, 2021. Complaint, Exhibits 11 and 12.
Complainant owns numerous registered trademarks in countries throughout Europe, including Spain; for example, International trademark no. 729149 for ING, registered on December 23, 1999. Complaint, Annexes 3 and 4. All of these trademarks were registered prior to March 15, 2021. Complaint, Annex 1. Numerous decisions in prior domain name cases have found that the ING mark is famous around the world. Complaint, Annex 8.
Respondent registered the disputed domain name on March 15, 2021. Complaint, Annex 1. The disputed domain name resolves to a website that that mimics the general appearance and colors used in Complainant’s website. Complaint, Exhibit 10. Respondent’s website claims that it is a provider of online services, and that its “parent company” is a leader in the “online trading revolution”. Id. Complainant was one of the first banks offering online and telephone banking services. Respondent’s web sites offer trading services identical to those offered by Complainant. Respondent has been offering investment services in Spain without having obtained authorization from the Spanish authorities, nor is it authorized to provide investment services in Spain. On July 19, 2021, the Spanish authorities issued a warning, informing investors that Respondent is not an authorized firm for providing investment services in Spain. Complaint, Exhibit 11. Investors in Spain have published complaints that Respondents have deceived them and that they have lost money in their belief that they had been investing with a legitimate company. Complaint, Exhibit 12.
On July 16, 2021, Complainant sent Respondent a Cease and Desist letter prior to commencing this action. Complaint, Exhibit 9. Respondent did not respond to this letter.
5. Other Legal Proceedings
Complainant has filed a criminal complaint with the Cybercrime Department of the Spanish Police, which complaint was filed on July 15, 2021. Complainant alleged that Respondent was committing financial fraud and an infringement of the intellectual property rights held by complainant.
The Uniform Domain Name Dispute Resolution Policy, paragraph 4(k) provides in pertinent part:
“The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded.” Therefore, the Panel finds that it may continue to adjudicate the present controversy.
6. Parties’ Contentions
Complaint alleges that the disputed domain name is identical to its registered trademark. Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant contends that Respondent has registered and is using the disputed domain name in bad faith.
Respondent did not reply to Complainant’s contentions. However, on August 18, 2021, Respondent indicated that it would be willing to resolve the dispute. Despite further communications from the Center, no additional communications were received from the Respondent. Furthermore, on September a third party enquired about the present dispute. Despite a request from clarification regarding the relationship of the third party to the Respondent, no additional communications were received from the third party.
7. Discussion and Findings
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name consists of the term “ing”, followed by the generic Top-Level Domain (“gTLD”) “.capital”. The term “ing” is identical to Complainant’s registered trademark. As only the disputed domain name is considered in an analysis of confusing similarity, the Panel finds that the disputed domain name is identical to Complainant’s well-known trademark ING.
B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the almost impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. The Panel notes that the registrant details of the disputed domain name are “Ing Capital Group”, however, there is no evidence before the Panel that such details correspond to a real entity, rather it appears that Respondent has attempted to impersonate the Complainant; accordingly, these registrant details do not give rise to any rights or legitimate interests within the meaning of paragraph 4(a)(ii) of the Policy.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Respondent has registered a disputed domain name that is identical to Complainant’s well-known and registered trademark ING. Complainant is using the disputed domain name to resolve to a website using Complainant’s color scheme and the general appearance of Complainant’s website. Respondent claims that its “parent company” is a leader in online trading. Respondent asserts that it has a “global repute” for its trading services and that it set the “gold standard” in the financial sector. Respondent is the subject of numerous complaints, many of which were filed with the authorities in Spain, that it has solicited and received capital from users and investors and has provided no services in return. Complainant has initiated a criminal action in Spain. Respondent failed to respond to the Complaint. In these circumstances, the Panel finds that Respondent most likely had Complainant and its trademark ING in mind at the time of registration of the disputed domain name, and that it has since sought to fraudulently impersonate Complainant for financial gain. Accordingly, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith.
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, <ing.capital>, be transferred to Complainant.
Date: October 28, 2021