The Complainant is Fortis Bank NV. [Part of BNP Paribas Group], Brussels, Belgium, represented by F. Quarles van Ufford, Netherlands.
The Respondents are Whois privacy protection service, Internet Invest, Ltd. dba I of Gaidara, Kiev, Ukraine (herein “Respondent Imena”) and Registrant ID:DI_15367577 / Oleg Manyuta / Private person, Vienna, Austria, (herein “Respondent Manyuta” or collectively the “Respondents”). 2. The Domain Names and Registrar
The disputed domain names and are registered with Internet Invest, Ltd. dba I. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 6, 2011. On October 6, 2011, the Center transmitted by email to Internet Invest, Ltd. dba I, a request for registrar verification in connection with the disputed domain names. On October 10, 2012, Internet Invest, Ltd. dba I transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 17, 2011 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 October 18, 2011.
On October 17, 2011 the Center notified the Complainant that as the language of the registration agreement for the disputed domain name was Russian (as per information provided by the Registrar), the Complainant would need to either provide satisfactory evidence of an agreement between the Complainant and the Respondents to the effect that the proceedings should be in English; submit the Complaint translated into Russian; or submit a request for English to be the language of the administrative proceedings. On October 18, 2011 the Complainant replied providing justification as to why the language of the proceeding be English. The Respondents did not provide any comments in this regard.
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 Respondents of the Complaint, and the proceedings commenced on October 31, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 20, 2011. The Response from the Respondent Manyuta was filed in French with the Center on November 18, 2011.
The Center appointed J. Nelson Landry as the sole panelist in this matter on January 9, 2011. 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.
The Center, at the request of the Panel, on January 16, 2012 issued a Procedural Order requesting the parties to provide certain documents translated in English or French, provide better readable documents and to confirm in which country and when Fortis Business Solutions GmbH was established. The parties where to provide answers no later than January 20, 2012 and comments on answers of the other party no later than January 25, 2012. The Complainant and the Respondent Manyuta both responded with the documentation and information respectively requested from them and the Complainant filed comments on the documentation, all within the delays stipulated in the Procedural Order. 4. Language of the Proceedings
As regards the question of the language applicable to the dispute, paragraph 11(a) of the Rules provides:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
As such, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. As stated by previous UDRP panels, the panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matter such as command of the language, time and costs. It is important that the language finally decided by the panel for the proceeding is not prejudicial to either of the parties in his or her abilities to articulate the arguments for the case. See Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004.
The registration agreement for the disputed domain names being Russian, the Complainant in response to the instructions communicated by the Center submitted a request for English to be the language of the present administrative proceedings.
The Complainant represented, with supporting evidence, that it became aware of the registration by the Respondent Manyuta of registrations of the trademark “Fortis Business Solutions” in Austria as a word trademark and a word and design or logo trademark. The Complainant’s legal representative sent a cease and desist letter on July 21, 2009, in the English language to the Respondent Manyuta and a copy of the letter was also sent in English to the said Respondent’s trademark attorney in Austria. The said trademark attorney for the Respondent Manyuta replied in English on August 6, 2009 to inform the Complainant’s representative that they could not reach their client, a Ukrainian resident and the said email did not contain any statement that the letter had to be translated. Subsequent to consultation with their client, Mr. Oleg Manyuta, the said trademark attorney replied in English on August 28, 2009. The Complainant sees in this correspondence in English an acceptance of the English language.
The Complainant further represents, again with supporting evidence, that the Respondent Manyuta has three websites: “www.: “www.” and “”, which are in the English language. The Complainant concludes in stating that it is a Belgian company, a global leader in the field of banking and financial services in which field the official language is English and therefore, concluded that the language of these proceedings should be English and not Russian.
The Panel has received and read the Response written in the French language submitted by the Respondent Manyuta and notes that its content reflects a good understanding of the Complaint and the representations of the Complainant. Although initially filed in French, the Response was apparently understood by the Complainant since there was no request to translate it into English. Under these circumstances, the Panel is not disposed to determine that the language of the proceedings should be in Russian.
The Panel therefore determines that in view of the evidence and the representations submitted and not challenged by the Respondent Manyuta that it is appropriate that English be the language of the present proceedings and that there is no need to require a translation into English of the Response written in French. 5. Factual background
The facts stated herein are those in respect of which there is no challenge, nor contradictory statements or representations as between the parties.
The Complainant is part of the BNP Paribas Group, providing European financial services of international standing, a large eurozone bank and a solid bank which employs 200,000 people in 84 countries and does provide banking, insurance and financial services.
The Complainant owns numerous trademark registrations containing the term “Fortis” in various countries since at least 1998, including registrations in Austria (Annex 4.4 to the Complaint) and in Ukraine (Annex 4.1 to the Complaint).
In 2009, upon finding that the Respondent Manyuta had registered in Austria two trademarks “Fortis Business Solutions”, the Complainant on July 21, 2009, sent a cease and desist letter objecting to the registrations and use of the said trademarks for identical or similar services and also of the company name “Fortis Business Solutions GmbH” and requesting to withdraw the said registrations and stop using the company name. The Respondent Manyuta, through his counsel, on August 20, 2009, refused to do so and said counsel stated that their client did not offer and did not intend to offer any banking or financial services.
On May 10, 2010, the Complainant was successful in an action to cancel two Austrian trademark registrations for “Fortis Business Solutions” as a word trademark and word device or logo trademark in the name of the Oleg Manyuta, one of the Respondents in this case. Each of the two trademark registrations was “deleted” with effect as from the moment of its registration in 2009. The grounds for the deletion was that the community and international trademark registrations of Fortis Bank NV were in association with classes 35, business management, 36, banking and financial affairs, insurance and 42, development of building projects, while the Austrian registration for the trademark “Fortis Business Solutions” applied for on February 20, 2009, was in association with classes 35, advertising, business management, business administration, 36, insurance, financial affairs, real estate and 42, industrial analysis and research services, design and development of computer hardware and software. It was determined that the shared element “Fortis” has a dominant and imposing role in the trademark “Fortis Business Solutions” and that the elements “Business Solutions” cannot be considered as characterizing with regard to the services claimed, in particular with respect to services and classes 35 and 36. (Austrian Patent Office decisions, English translation).
The Respondent Manyuta is also the owner of a trademark registration for the trademark “Fortis” in Ukraine in association with classes 16, 41 and 45 to which the Complainant does not object since the registration does not cover identical or similar services.
The disputed domain names were respectively registered on April 13, 2011 for and on August 22, 2011 for by the Respondent Imena acting as Registrar at the request of the Respondent Manyuta and providing to the latter privacy services.
On August 29, 2011, the Complainant sent to the Respondent Imena a cease and desist letter which objected to the registration of the disputed domain name which disputed domain name was redirected to the Complainant’s own website “”. On September 6, 2011, the said Respondent answered in stating that the web-redirect had been deactivated and subsequently, the said disputed domain name was redirected to the website at the address of the other disputed domain name “www.”. On September 7, 2011, the Respondent Imena on behalf of its client, the Respondent Manyuta, informed the Complainant that the client, the Respondent Manyuta, unknown by name to the Complainant, at this point in time does not want to give feedback to the request and stated to be the owner of “brands such as Fortis and Fortis Business Solutions”.
The identity of the Respondent Manyuta became known to the Complainant once the Complaint was filed with the Center and that Respondent Imena disclosed the identity of the Respondent Manyuta pursuant to the verification request made by the Center.
Pursuant to a Google search, the Complainant noted that the website of the Respondent Manyuta, “”, provides a link to “Fortis Business Solutions” which link first re-redirected to “” and then further redirects to “www.”. 6. Parties’ Contentions A. Complainant
The Complainant represents the following:
1) it is a global leader in the field of banking, insurance and financial services, one of the largest bank in the eurozone with 200,000 employees in 84 countries and has core businesses in retail banking, investment solutions and corporate investment banking in four domestic markets, Belgium, Italy, France and Luxembourg as well as a significant presence in the United States of America and in Asia,
2) it is the owner of several trademark registrations containing the term “Fortis” in various countries including registrations in Ukraine since at least 1998 and furthermore, has used certain trademarks in countries in which common law rights are recognized,
3) the disputed domain names incorporate the trademark FORTIS where the only difference is the addition of the descriptive terms “investbank” and “group” along with gTLD suffix “.com” and “.info” and that this does not diminish in any way the confusing similarity to the Complainant’s company name and trademark FORTIS.
4) when it first became aware of the registration of the disputed domain name in August 2011, registered in the name of the Respondent Imena privacy services, the website at the address of the said Respondent’s disputed domain name was redirected to the Complainant’s own website “” and pursuant to a cease and desist letter sent to the Respondent Imena, the web-redirect was removed immediately with a confirmation from the Respondent Imena on September 6, 2011.” The website “www.” was subsequently redirected to the website “www.”. In a subsequent communication with the Respondent Imena, the latter informed the Complainant that its customer was the owner of the trademarks “Fortis” and “Fortis Business Solutions”. In view of the fact that the Complainant had an earlier conflict with the owner of the two Austrian trademark registrations “Fortis Business Solutions”, the Complainant contacted the Respondent Manyuta directly as the alleged owner of the said trademarks.
5) it was successful in having both trademark registrations for “Fortis Business Solutions” cancelled.
6) it did not object to nor challenged the trademark registration “Fortis” in Ukraine because of the different, non identical nor similar services associated with the trademark.
7) the Respondent Manyuta was aware of the ownership of several registrations for the trademark FORTIS when he registered the two disputed domain names and that since his own Austrian trademark registrations were cancelled, the said Respondent has no rights or legitimate interests in these disputed domain names.
According to the Complainant, it is not aware of any bona fide use by the customer of the Respondent Imena of its trademark FORTIS since the Complainant was successful in its cancellation action against the two trademark applications “Fortis Business Solutions” of the Respondent Manyuta, customer of the Respondent Imena. The Complainant further claims that there is no relationship between itself and the Respondent Imena, its customer the Respondent Manyuta and neither is there a relationship between the said two Respondents and the company Fortis Business Solutions Ltd. in the United Kingdom. The latter company being the owner of a website to which the Respondent Manyuta’s website “www.” had been redirected.
The Complainant claims that the ownership by the Respondent Manyuta of the registration in Ukraine of the trademark “Fortis” does not give the Respondent Manyuta a valid reason to register and use the disputed domain names which include the term “group” while the said Respondent is not a group nor the terms “invest bank ” which are used in the same field of activities of those of the Complainant.
According to the Complainant and the evidence herein, the Respondent Manyuta was aware of the Complainant and its FORTIS trademark when the disputed domain names were registered, and this constitutes bad faith, further confirmed by the fact that the Respondent Manyuta was obliged to pay the cost of the cancellation proceedings in Austria in May 2010 and the Complainant was then informed by the Respondent’s lawyer that he no longer represented the Respondent Manyuta and Fortis Business Solutions and when the Complainant attempted to contact said Respondent Manyuta at the address appearing on the trademark register, which was also the address of his company, the letter was return undeliverable with the indication “moved”.
The Complainant concludes that such awareness of the Complainant’s trademark along with the cancellation proceedings in 2010 prior to the registration of the disputed domain names in April and August 2011 is sufficient evidence of the bad faith of the Respondent Manyuta at the time of registration of the said domain names. See Red Bull GmbH v. Harold Gutch,WIPO Case No. D2000-0766.
By reason of the confusing similarity of the disputed domain names with the trademark FORTIS and the fact that the disputed domain name has been redirected to the Complainant’s website, the Complainant claims that further evidence of the use in bad faith of the disputed domain name by the Respondent Manyuta is that the website “www.” has been linked to the website “/global-pensions/news/1935818/investors-launch-claim-fortis”, immediately after the Complainant cease and desist letter was sent to the Respondent Imena, on September 13, 2011 ( the identity of the Respondent Manyuta was not known then) and which website was stating negative news about Ageas as factually stated herein and said website content was subsequently changed into another website “”.
According to the Complainant, further evidence of registration and use in bad faith reside in the fact that the purpose of the registration of the disputed domain names was to attract for commercial gain Internet users to the website by creating a likelihood of confusion with its trademark FORTIS, company names and domain names. Such use and registration of the disputed domain names had one sole purpose, namely the use of the name of a top world company to tarnish the FORTIS trademarks and for the further purpose of disrupting his business. Comments subsequent to the Procedural Order and additional evidence from the Respondent Manyuta
The Complainant objected to the documentation in a language other than English and invited the Panel to disregard said documentation. The Panel reiterates and refers to his decision in respect of the language of the Proceeding.
The Complainant reiterated that both Austrian trademark registrations were cancelled and that the registration in Ukraine was in classes 16, 41 and 45, which are not goods and services similar to its own services in classes 35, 36 and 42.
In respect of the company “Fortis Business Solutions GmbH”, the Complainant states that when, in August 2010, it first tried to contact its lawyer, the latter answered that it no longer represented the company. The Complainant then tried to contact the company using the address on the companies register but the letter came back with the mention “moved” and no new address was available on the companies register. B. Respondent Oleg Manyuta
The Respondent in the Complaint as originally filed is Internet Invest Ltd. doing business as I located in Kiev, Ukraine, ( herein the “Respondent Imena” ). The said Respondent did not file any response.
The Respondent Oleg Manyuta (herein the “Respondent Manyuta ” or the “ Respondents”) represents that the idea of using the term “fortis” came in 2001 in order to set up his own periodical Fortis Management Journal and register himself with the Ministry of Education and Science in Ukraine in 2001.
According to the Respondent, he filed an application to register the trademark “Fortis” in Ukraine which was done on October 15, 2003 in association with classes of wares and services 16, 41 and 45 and states that he subsequently received from FORTIS Bank a long letter of complaint with mentions of infringement of the latter’s trademark rights.
The Respondent Manyuta further represents that the term “fortis” became associated with his business with various angles such as law, finance and business administration when in 2008 he moved from Ukraine to Austria and in the fall 2008 was advised by his Austrian lawyers, to register the trademarks “Fortis Business Solutions”. A reorganization was done and along with his new corporate name “Fortis Business Solutions GmbH” set up in Vienna, Austria, the Respondent Manyuta states that in February 2009 he applied to register the trademarks “Fortis Business Solutions”, as a word trademark and as a word and design or logo trademark in association with classes 35, 36 and 42 and obtained the registrations in May 2009. He was subsequently informed by his Austrian lawyers of the claims and objections of the owner of the FORTIS international trademark and in the subsequent discussions he refused to transfer his trademarks “Fortis Business Solutions” for an amount of purely symbolic value.
The Respondent Manyuta claims that subsequent to the registration of the two disputed domain names with the Ukrainian Registrar, the Respondent Imena, he received a complaint from counsel of the owner of the trademark FORTIS requesting that the disputed domain names be immediately withdrawn. In answering said request from the owner of the trademark FORTIS, the Respondent Manyuta refused and reiterated the presence of his trademark “Fortis Business Solutions” in Ukraine and in Austria which, in his view, represents a certain identity of his rights. 7. Discussion and Findings
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements in order for the disputed domain names to be cancelled or transferred:
(i) The disputed domain names registered by the Respondent are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) The disputed domain names have been registered and are being used in bad faith. The Respondents involved in this proceeding
As noted herein, the Respondent initially mentioned in this proceeding is Internet Invest Ltd, and the Respondent Manyuta, the party who requested and paid for the registration of the disputed domain names was added later pursuant to an amendment.
The Panel has reviewed and analyzed the evidence and representations by the parties in respect of the three criteria under the Policy in respect of the activities of the Respondent Manyuta, the instructing party to the Registrar, the Respondent Imena, who was acting, as agent, upon reception of instructions from the Respondent Manyuta, registered the disputed domain names in the latter’s name using its privacy protection service. A. Identical or Confusingly Similar
Upon considering the evidence adduced by the Complainant in respect of its long and extensive use of the registered trademark FORTIS in association with banking, insurance and financial services, its operation where it employs more than 200,000 persons in 84 countries since at least 1998 on the one hand, and the numerous trademark registrations it owns and which are registered and used in association with services in classes 35, 36 and 42, this Panel considers that the Complainant has clearly established that it has trademark rights in the trademark FORTIS, in particular in Austria and Ukraine, where the Respondents are both active and that a substantial amount of goodwill is associated therewith.
The Panel finds that the Complainant has rights in the trademark FORTIS.
The term “fortis” is a new or coined term without any descriptive connotation and is therefore highly distinctive. The trademark FORTIS is the key term in each of the disputed domain names to which term are associated descriptive terms such as “invest” and “bank” in one disputed domain name and “group” in the other, along with gTLD suffix “.com” and “.info”. It is well established in UDRP decisions that the addition of generic and descriptive terms, closely associated with the services such as those involved herein along with a gTLD suffix, does not diminish in any way the identity or confusing similarity between the disputed domain names and the well known and highly distinctive trademark FORTIS of the Complainant.
The Panel finds that each of the disputed domain names is confusingly similar to the trademark FORTIS in which the Complainant has rights.
The first criterion under the Policy has been met. B. Rights or Legitimate Interests
Considering the evidence, unchallenged, that the two trademark registrations “Fortis Business Solutions” of the Respondent Manyuta in Austria were cancelled with effect as from the moment of their registrations, therefore as if they had never existed, on the one hand and that such cancellations were instigated by the Complainant with the implicit affirmation that the Complainant has never authorized or licensed the Respondents to register the said “Fortis Business Solutions” registrations either in Austria or in Ukraine and that neither of them was associated with, representative or agent of the Complainant, on the other hand, therefore it is clear to this Panel that the Respondent Manyuta has no rights in respect of the two disputed domain names which were registered without any authorization, explicit or implicit, from the Complainant and where upon finding about the registrations in Austria, the Complainant rapidly protested and challenged their status and use in the various websites associated therewith.
There remains that the Respondent Manyuta has a registration for the trademark “Fortis” in Ukraine to which the Complainant does not object. Does this give rights or legitimate interests to said Respondent to register the disputed domain names? Not necessarily in this Panel’s view, particularly in the circumstances of the present case.
It is possible and acceptable for two persons or entities to own the same trademark each in association with wares and/or services which are different or not similar, as it is the case for the registration in Ukraine in this proceeding. However this does not give to the Respondent Manyuta the right to register the disputed domain names and use them in the field of activities of the Complainant, as shown by the evidence adduced. A similar situation was considered by a panel of three members in Madonna Ciccone v. M / Dan Parisi,WIPO Case No. D2000-0847, where the respondent contended that it had rights in the domain name because it registered MADONNA as a trademark in Tunisia prior to notice of the dispute.
The panel in the Madonna case stated: “Respondent has failed to provide a reasonable explanation for the selection of Madonna as a domain name. Although the word “Madonna” has an ordinary dictionary meaning not associated with Complainant, nothing in the record supports a conclusion that Respondent adopted and used the term “Madonna” in good faith based on its ordinary meaning. We find instead that name was selected and used by Respondent with the intent to attract for commercial gain Internet users to Respondent’s web site by trading on the fame of Complainant’s mark.” ……." To establish cognizable rights, the overall circumstances should demonstrate that the registration was obtained in good faith for the purpose of making a bona fide use of the mark in the jurisdiction where the mark is registered, and not obtained merely to circumvent the application of the Policy.”
The Panel finds assistance in these statements which do apply substantially to the present case. There is no evidence that the Respondent Manyuta does use the Ukrainian registered trademark in association with the wares or services in the classes associated with the registration. To the contrary, the evidence is abundant that the Respondent has consistently embarked upon the field of banking, financial investments and other activities of the Complainant in the websites associated with the disputed domain names.
The fact that the Respondent has the company Fortis Business Solutions GmbH registered does not provide further assistance since again there is no evidence of a distinctive and proper use of this company as it appears to be the case for the third party British company which has the same name and to which website the Respondent has redirected Internet visitors to the websites under the address of the disputed domain names.
As stated in the Madonna case, the Panel adopts the relevant statements and finds at a minimum that the activities and the behaviour of the Respondent Manyuta in this case do not evidence nor establish legitimate interests in the disputed domain names.
There is no evidence that the Respondent Manyuta is making a legitimate bona fide commercial use of these two disputed domain names upon considering the evidence adduced by the Complainant, in particular the various websites and redirections to other websites associated with the said disputed domain names.
The Panel finds that none of the Respondents have no rights or legitimate interests in respect of the disputed domain names.
The second criterion under the Policy has been met. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the disputed 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 the 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 website or other on-line location, by creating a likelihood of confusion with the complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
It should be noted that the circumstances of bad faith are not limited to the above.
The evidence is clear, in particular in view of the Austrian cancellation of the “Fortis Business Solutions” trademarks registrations of the Respondent Manyuta, that said Respondent, also a client of the Respondent Imena, the registrar of the two disputed domain names, was well aware of the registrations and substantial use by the Complainant of its FORTIS trademark and furthermore, as already determined by the Austrian Patent Office, that the trademark “Fortis Business Solutions” was confusingly similar with the trademark FORTIS of the Complainant by the presence of the dominant term “fortis” in the said Austrian registrations as it is present in the two disputed domain names in the current proceeding.
These facts, in this Panel’s view, are sufficient to conclude that the disputed domain names were registered in bad faith, by Respondent Manyuta with full knowledge of the Complainant’s rights and objections.
Notwithstanding the presence of the corporation Fortis Business Solutions GmbH, already addresses by the Panel under the second element, to which the Complainant’s objected in the first cease and desist letter, the evidence of the Complainant about the way in which the Respondent Manyuta has used the disputed domain names to redirect Internet visitors to various websites, first to the Complainant’s own website, which was rapidly cancelled upon receiving a request from the Complainant, second other redirections to websites with competitive activities to those of the Complainant in the same classes 35 and 36 of financial and commercial activities and furthermore a website with negative news about formerly holding companies of the Complainant, said evidence, in this Panel’s view, is sufficient to demonstrate the ongoing use of the disputed domain names in bad faith rather than abandoning this type of objectionable activities upon complying with the first request by the Complainant.
The Panel finds that the Respondents have registered and used the disputed domain names in bad faith.
The third criterion of the Policy has been met. 8. Decision
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 names and be transferred to the Complainant.
J. Nelson Landry
Sole Panelist
Dated: January 30, 2012
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