WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lloyds Bank Plc v. Jack Foral
Case No. DCO2014-0037
1. The Parties
The Complainant is Lloyds Bank Plc of London, United Kingdom of Great Britain and Northern Ireland (the "UK") represented by Crowell & Moring, LLP, Belgium.
The Respondent is Jack Foral of Atlanta, Georgia, United States of America.
2. The Domain Name and Registrar
The disputed domain name <lloydbank.co> is registered with Tucows Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 4, 2014. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. Also on December 4, 2014, the Registrar transmitted by email to the Center its verification response confirming the Respondent as the registrant and providing contact details. In response to notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on December 12, 2014.
The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 15, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 4, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 6, 2015.
The Center appointed John Katz QC as the sole panelist in this matter on January 19, 2015. 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 large corporate entity based in the UK, and with a worldwide presence. It offers financial services including banking.
The Complainant is the registered proprietor of a number of trade marks which are in evidence. They include the word mark, registered since 1986, LLOYDS BANK, together with the word mark and Black Horse device. These registrations exist in a number of diverse countries together with Community Trade Marks.
The Complainant also owns the domain name <lloydsbank.com> which it uses to operate its official website advertising and promoting its banking services. One screenshot from that website which is in evidence is titled "Who We Are", to which reference will be made later.
The disputed domain name, registered as of July 24, 2014, is <lloydbank.co>, which is the same as the domain name of the Complainant save for the omission of the "s" between Lloyd and Bank and the suffix ".co" rather than ".com".
The disputed domain name resolves to a website purporting to be that of "Lloyd Bank". The screenshot of that website submitted by the Complainant shows a heading "Who We Are" and the information underneath it is in part an exact copy of the Complainant's "Who We Are" information published on its website. The screenshot suggests and claims that banking and financial services akin to those offered by the Complainant are on offer by the Respondent. There is no link or association between the Complainant and the Respondent.
5. Parties' Contentions
The Complainant relies upon its registered trade marks and its presence in the marketplace as establishing a worldwide reputation and goodwill such that any use of or reference to Lloyds Bank (with or without the "s") would be taken as a reference to the Complainant.
The Complainant alleges it uses its registered trade marks consistently with respect to all its various offerings. It contends that the Respondent, by adopting the same or similar trading style, and using a mark that is the same or confusingly similar to trade marks of the Complainant, is wrongly encroaching on the Complainant's goodwill and wrongly suggesting a link or association with the Complainant. The disputed domain name and the offering on the website, to which the disputed domain name resolves, of banking and financial services, serves to compound an apparent link or association, contrary to the fact.
The Complainant contends that any person accessing the Respondent's website would or might be caused to assume that the Respondent is in some way associated with or linked to the Complainant.
The Complainant contends that the Respondent is not known as "Lloyd Bank" whether as a composite word or two words and indeed is registered as Jack Foral, which is not the disputed domain name nor the identifier of the website to which the disputed domain name resolves.
The Complainant further contends that given the famous nature of its trade marks, it is inherently improbable that the Respondent was not well aware of it when registering the disputed domain name and has done so for improper or fraudulent purposes.
As the Respondent has defaulted there is no evidence or submission from him. That being so it is necessary for the Panel to draw inferences from the established facts as put in evidence by the Complainant.
The only direct evidence of the Respondent is what he provided to the Registrar at the time of the registration of the disputed domain name in July 2014 together with the screenshot from the website corresponding to <lloydbank.co> provided by the Complainant.
The website at the disputed domain name quite clearly purports to offer banking and financial services akin to those offered on the Complainant's website "www.lloydsbank.com".
6. Discussion and Findings
The Policy is directed towards resolving disputes concerning allegations of abuse of domain name registrations.
As part of the process, a complainant must provide evidence and submissions in support of its complaint. The expectation is that the complainant will provide such supporting evidence as is necessary to make out its case under all three heads in paragraph 4(a) of the Policy. The respondent is given full opportunity to respond. In this instance, the Respondent has defaulted.
Paragraph 4(a) of the Policy sets out three elements that must be established by a complainant to merit a finding that a respondent has engaged in abuse of domain name registration and to obtain relief. These elements are that:
(i) the respondent's domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the respondent's domain name has been registered and is being used in bad faith.
Each of these three elements must be established by a complainant to warrant relief.
A. Identical or Confusingly Similar
As to the first ground, the disputed domain name must be shown to be identical or confusingly similar to a trade mark or service mark in which the Complainant has rights.
The Complainant must establish that it has such rights either to common law or registered trade marks or service marks and that those rights are being abused by the Respondent. Based on the trade mark registrations in evidence, the Panel finds that the Complainant has rights in the trade mark LLOYDS BANK.
This Panel takes the view that the simple omission of the letter "s" in the middle of the disputed domain name is a distinction of no substance. Indeed, many people, especially those less familiar with English grammar and usage, may well not distinguish between "lloydsbank" and "lloydbank". What matters is that the very essence of the Complainant's trade mark has been taken. The omitted letter "s" could quite readily be overlooked by a visitor to the Respondent's website.
This point was emphasized by the European Court in a decision in 2003 that considered what constitutes use of an identical mark. In LTJ Diffusion SA v. Sardas Vertdaubet SR  FSR 34, the European Court held that a mark used by a Respondent is identical with a Complainant's mark if the former "reproduced without any modification or addition all the elements constituting the trademark or, where, viewed as a whole, it contains differences so insignificant that they go unnoticed by an average consumer".
The Panel considers this statement equally applicable to the facts of the present Complaint filed under the UDRP. If one looks at the disputed domain name from the perspective of overall impression and whether or not viewed as a whole, the disputed domain name contains differences so insignificant that they would likely go unnoticed by the average consumer. It therefore follows that the disputed domain name is nearly identical and without a doubt confusingly similar to a mark in which the Complainant has rights.
As for the country code Top-Level Domain ("ccTLD") suffix, as has been held by this and other panels, the suffix is generally a matter of no moment as it is purely a technical requirement.
However, even if that was not so, there can be absolutely no argument but that the disputed domain name is confusingly similar. That must be so where the differences are of such a minor nature that to most people it would go unnoticed or at best would simply, if noticed be dismissed as inconsequential. So subtle is the difference, by omitting the "s", that confusion between the Respondent's domain name and trademarks to which the Complainant has rights, is inevitable. The same applies to the ccTLD suffix. Both are in effect typosquatting.
The Panel accordingly finds that paragraph 4(a)(i) is made out.
B. Rights or Legitimate Interests
As to the second ground, that there are no rights or legitimate interests possessed by the Respondent, the Complainant must, at the least, make out an unrebutted prima facie case that the Respondent lacks rights or legitimate interests. Here, the Complainant says it has not authorized or licensed the Respondent to use its name or mark in a domain name. The Respondent has not put forward in evidence any business or trading operation commonly known as or by the disputed domain name thereby justifying a right or legitimate interest in the disputed domain name. The Panel finds that the Complainant has made out its prima facie case.
Under paragraph 4(a)(ii) of the Policy, a respondent can justify its registration of a domain name on certain grounds some of which are set out in paragraph 4(c) of the Policy. Such grounds relate broadly to its own name use, bona fide use, or legitimate noncommercial or fair use.
Even though the Respondent has defaulted, it is not sufficient simply to assume from that that the Respondent has no rights or legitimate interests or can claim none.
The Respondent is registered as Jack Foral, ostensibly a name with no similarity to or connection with the disputed domain name. As the disputed domain name was registered only as of July 2014, it is not likely that the Respondent has any legitimate business interests with which it is connected and by reference to the name Lloyd Bank whether as a composite word or two words.
Moreover, given the well-known nature of the Complainant's name and marks, it is an inevitable inference that the Respondent was well aware of the Complainant and its relevant marks, and chose a confusingly similar mark or sign for other than bona fide purposes. This must be so also given the purported similarity of offerings.
The Panel finds that nothing in the available record rebuts the Complainant's prima facie case. The Panel accordingly finds that paragraph 4(a)(ii) of the Policy is made out.
C. Registered and Used in Bad Faith
As to the third ground, this requires that the disputed domain name be registered and used in bad faith. As has previously been said in other UDRP decisions together with earlier decisions of this Panel, both elements must be made out. Accordingly, both registration and use in bad faith have to be established by the Complainant.
The Complainant accepts it has the burden of proving both registration and use in bad faith.
The Complainant is a leader in the provision of banking and financial services. It has acquired an international reputation in that sector. It is a sector that is tightly regulated and properly so. Unauthorized use or wrongful claims of links or associations can be immensely damaging to institutions such as the Complainant. This is particularly so when a respondent can effectively "fly below the radar" and seek to avoid regulatory controls to which the complainant is subject.
It is inconceivable that the Respondent was not aware of the Complainant and its trade marks at the date of registration of the disputed domain name in July 2014. The almost identical nature of the disputed domain name and the Complainant's primary trade mark adequately satisfies the Panel that the disputed domain name was registered in bad faith.
As for the second limb, use in bad faith, the disputed domain name resolves to a website offering the same or similar services to those of the Complainant. Further, the exact copying by the Respondent of parts of the Complainant's website ("Who We Are") speaks volumes about the bad faith registration and use of the disputed domain name by the Respondent. The Panel cannot conceive of any reason why the Respondent registered a domain name nearly identical to the Complainant's mark to host a website copying portions of the Complainant's website other than to intentionally attract Internet users for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent and his website.
The Panel accordingly finds that both limbs of paragraph 4(a)(iii) of the Policy are 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 <lloydbank.co> be transferred to the Complainant.
John Katz QC
Date: February 2, 2015