WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Banco Supervielle S.A. v. PrivacyP/ Purple, Purple Bucquet Case No. D2010-0758 1. The Parties
The Complainant is Banco Supervielle S.A. of Ciudad de Buenos Aires, Argentina, represented by Obligado & Cia. Lda. S.A., Argentina.
The Respondent is PrivacyP/ Purple, Purple Bucquet, of Panama City, Panamá. 2. The Domain Name and Registrar
The disputed domain name is registered with Power Brand Center LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 11, 2010. On May 12, 2010, the Center transmitted by email to Power Brand Center LLC a request for registrar verification in connection with the disputed domain name. On May 17, 2010, Power Brand Center LLC 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 the Complainant on May 19, 2010, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 21, 2010 to amend the name of the Respondent to Purple Bucquet. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 25, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 14, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 15, 2010.
The Center appointed Francine Tan as the sole panelist in this matter on June 29, 2010. 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 financial institution in Argentina which has more than 2,600 employees and over 120 branches in the provinces of Buenos Aires, Cordoba, Mendoza, Santa Fe and San Luis in Argentina. As of December 31, 2008, the Complainant's assets amounted to USD 1,117 million and its net assets amounted to USD 103 million. In terms of private financial institutions with national capital, the Complainant claims to be 7th in ranking by volume of assets and loans, and 6th by amount of deposits. 5. Parties' Contentions A. Complainant
1. The Complainant asserts that the disputed domain name is identical to a trade mark or service mark in which the Complainant has rights. The Complainant has registered the BANCO SUPERVIELLE mark in Argentina in Classes 1, 7, 9, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45. The applications for these marks were filed in 2004 and granted before January 20, 2007 which is the registration date of the disputed domain name. The Complainant is also the owner of the following domain names: and . The former was registered on April 17, 1998 and the latter on September 6, 2000.
The Complainant further asserts that the trade mark SUPERVIELLE has been widely publicized and is well-known and a prestigious name in the finance industry. The trade mark BANCO SUPERVIELLE is not only a registered, but also a famous mark. Members of the public would logically enter the disputed domain name in order to access information related to the Complainant's goods and services. The registration of the disputed domain name by the Respondent leads to confusion and deception as members of the public would reasonably assume that the webpage located at “www.” is that of the Complainant's.
2. The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name:
(a) The Respondent is not the registered owner of trade marks incorporating the words BANCO SUPERVIELLE or SUPERVIELLE.
(b) The Respondent has not shown any legitimate interest in the trade mark BANCO SUPERVIELLE or any legitimate reason for its choice of the disputed domain name.
(c) The web page located at “www.” does not have its own content and simply posts “Related Searches” to other Internet web pages that offer a variety of products and services, most of which relate to financial activities. None of these belong to or are authorized by the Complainant. The Respondent is therefore not making legitimate use of the disputed domain name.
(d) The Respondent has not used, nor made demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of products or services.
(e) The Respondent is not commonly known by the disputed domain name, nor has the Respondent legitimately acquired trade mark rights in BANCO SUPERVIELLE or SUPERVIELLE.
3. Finally, the Complainant asserts that the disputed domain name was registered and is being used in bad faith. It was registered with the aim of interfering with the Complainant's commercial activities. The Respondent's web page has no substantive content and only contains sponsored/additional links to other web pages, most of which relate to financial activities and many of which are those of competitors of the Complainant.
The manner in which the disputed domain name is used shows bad faith registration and use on the Respondent's part. It prevents the legitimate owner of the trade marks BANCO SUPERVIELLE and SUPERVIELLE from reflecting those marks in a corresponding domain name. Further, the “Related Searches” section on the Respondent's web page has remained inactive for more than three years after the registration of the disputed domain name. This clearly shows the lack of active exploitation of the website. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Under paragraph 4(a) of the Policy, the Complainant has to prove the following three elements:
(i) That the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) That the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
The Complainant has provided evidence of its rights in the trade mark BANCO SUPERVIELLE. The next issue to be considered in connection with paragraph 4(a)(i) of the Policy is whether the disputed domain name is identical or confusingly similar to the said trade mark. In this case, the entire trade mark BANCO SUPERVIELLE has been incorporated into the disputed domain name. In view of the fact that it has been well established that when assessing whether a domain name is identical or confusingly similar, the gTLD domain suffix (in this case, “.com”) may be disregarded, the Panel finds that the disputed domain name is identical to the Complainant's trade mark.
The first criterion of paragraph 4(a) has therefore been established. B. Rights or Legitimate Interests
In the absence of a Response from the Respondent or any evidence to show it has rights or legitimate interests in the disputed domain name, the Panel is only able to make a determination based on the prima facie case that the Complainant has presented.
On the face of it, there is nothing which indicates that the Respondent has rights in the trade mark BANCO SUPERVIELLE or that it has legitimate interests in the disputed domain name. The sponsored links found on the Respondent's website in fact would indicate, as asserted by the Complainant, the absence of bona fide use or legitimacy in the adoption of the Complainant's trade mark BANCO SUPERVIELLE in the disputed domain name.
Paragraph 4(c) of the UDRP provides examples of ways in which the Respondent could have demonstrated its rights or legitimate interests in the disputed domain name:
“(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 non-commercial 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 Respondent is in the better position to establish any or all of the above circumstances to refute the Complainant's assertions. However, in failing to, the Panel has to make a determination of this issue based on what has been presented by the Complainant. The Panel finds that the Complainant has established a prima facie case, that the Respondent has no rights or legitimate interests in the disputed domain name: (i) the Respondent does not appear to be using the disputed domain name in connection with the bona fide offering goods or services; (ii) there is no evidence that the Respondent has been commonly known by the disputed domain name; and (iii) the Respondent's offering of sponsored links on its website to the websites of third parties including those of competitors does not allow one to find that the Respondent is making a legitimate non-commercial or fair use of the disputed domain name. It is clear that there is no relationship between the Respondent and the Complainant, and neither has the latter authorized the use of the trade mark BANCO SUPERVIELLE or the registration of the disputed domain name.
In the circumstances, the Panel finds that the second criterion under paragraph 4(a) of the Policy has been proved. C. Registered and Used in Bad Faith
The Panel also has no difficulty in finding that the registration and use of the disputed domain name have been in bad faith. It is unlikely that the Respondent did not have any knowledge of the Complainant and of its trade mark BANCO SUPERVIELLE when it registered the disputed domain name. The evidence submitted by the Complainant would suggest that the Respondent registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant, and/or by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location (paragraph 4(b)(iii) and (iv) of the Policy). The sponsored links on the Respondent's website show that the Respondent is trading on the fact that Internet users would very likely expect to find information relating to the Complainant and its products and services on the website “www.” and assume that there is some connection between the website and the Complainant, or that the website was endorsed or authorised by the Complainant. This is indicative of bad faith.
The Panel therefore finds that the Respondent has registered and used the disputed domain name in bad faith, and that the third criterion under paragraph 4(a) of the Policy has been satisfied. 7. Decision
For all 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 be transferred to the Complainant.
Francine Tan
Sole Panelist
Dated: July 8, 2010
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