The Complainant is BinckBank N.V. of Amsterdam, Netherlands, represented by Mr. Ivor Maat, Netherlands.
The Respondent is Silue Tiessolikaabdoul of Abidjan, Ivory Coast. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc.. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 11, 2011. On November 11, 2011, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On November 11, 2011, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 21, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was December 11, 2011. The Respondent did not submit any response. The Center only received on November 30, 2011 an email communication from the company Société Ligne Web Services, listed as the Respondent’s technical contact for the disputed domain name, which stated that the domain name had been suspended. Absent any response from the Respondent, the Center notified its default on December 12, 2011.
The Center appointed Philippe Gilliéron as the sole panelist in this matter on December 15, 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.
On December 22, 2011, the Panel notified through the Center to the Parties an administrative procedural order, inviting the Complainant by December 27, 2011 (1) to provide the Panel with the potentially written document of October 28, 2011 referred to in its Complaint, informing Complainant of the phishing activities allegedly carried out on the website attached to the disputed domain name; and (2) to provide the Panel with any document that would demonstrate that phishing activities had been carried out from the website attached to the disputed domain name (such as, but not exclusively: emails with clients; capture screens, etc). The Complainant did neither respond nor submit any additional evidence. 4. Factual Background
The Complainant is a Dutch limited liability company, exploiting an independent online bank for investors. The Complainant has been issued a European bank permit by the AFM in 2006 and is listed on the NYSE Euronext stock exchange in Amsterdam.
The Complainant holds the Benelux word trademarks BINCK and BINCKBANK No. 777442 and 777443 both filed on November 16, 2005 under classes 16, 35 and 36 of the Nice Classification.
The Complainant also holds the community word trademarks BINCK No. 008654683 and BINCKBANK No. 008654824, both registered on July 5, 2010 in classes 16, 35 and 36 of the Nice Classification with a priority date as of November 2, 2009.
The disputed domain name was registered on July 28, 2011.
After discovering the existence of the disputed domain name, the Complainant addressed to the designated contact of the registrant a trademark infringement and cease and desist email on November 4, 2011, informing the Respondent that he was violating its trademark rights and requesting the disabling of the disputed domain name and its transfer in favor of the Complainant.
The Complainant did not receive any answer from the Respondent to its cease and desist email and filed the present Complaint on November 11, 2011. 5. Parties’ Contentions A. Complainant
The Complainant first argues that the disputed domain name is identical or confusingly similar to its registered trademarks BINCK and BINCKBANK, as it fully incorporates both trademarks. The Complainant insists on the fact that large amounts of money are being invested for the branding of its trademarks and that said trademarks are often used in commercial advertising, either on TV or in the press, therefore increasing the risk of confusion for its clients or potential clients.
The Complainant then asserts that the Respondent has no right or legitimate interest in respect of the disputed domain name. Indeed, the Complainant first emphasizes the fact that the website operated under the disputed domain name is not associated with the Respondent’s activities. Furthermore, the Complainant underlines the absence of right of the Respondent in the disputed domain name by mentioning the prohibition to pose as a bank when you are not and when you are not authorized to act as such. The Respondent has no banking activity and the Complainant therefore argues that it has no right to use the disputed domain name which contains the term “Bank”.
Finally, the Complainant alleges that the disputed domain name has been registered and is being used in bad faith by the Respondent. In that regard, the Complainant invokes that before sending its cease and desist email, it has been informed that the Respondent was performing unlawful phishing activities from an email address originating from the disputed domain name. The Complainant therefore argues that the disputed domain name is being used in bad faith considering the Respondent’s illegal activities as well as the Respondent’s refusal to transfer the disputed domain name preventing its registration by the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “[…] 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”.
In view of the Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant’s undisputed representations pursuant to the Rules, paragraphs 5(e), 14(a) and 15(a) and will draw such inferences as it considers appropriate pursuant to the Rules, paragraph 14(b).
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) 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) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
According to the Policy Paragraph 4(a)(i), the Complainant has to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
In the case at stake, the Complainant proves to be the holder of the two registered Benelux and community trademarks BINCK and BINCKBANK, both of which have been registered before the disputed domain name.
The disputed domain name is composed of the entire trademark BINCKBANK owned by the Complainant. The only element added to the complainant’s registered trademark appearing in the disputed domain name is the generic Top Level Domain “.org”.
As several panels have previously stated, a domain name which incorporates a complainant’s trademark is likely to be confused with the said trademark, and the addition of a gtld at the end of the domain name is not deemed sufficient to exclude confusing similarity as it is a technical requirement for the registration (see paragraph 1.2 of the WIPO overview of WIPO Panel Views on Selected UDRP Questions, Second Edition).
In light of the above, the Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademarks and that the Policy, paragraph 4(a)(i) has been satisfied with regards to the disputed domain name. B. Rights or Legitimate Interests
According to the Policy, paragraph 4(a)(ii), the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name.
This condition of paragraph 4(a)(ii) requires the complainant to prove a negative fact, which often proves to be an impossible task for the complainant since it often requires information that is primarily within the knowledge of the respondent. In Do the Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624, the panel stated in that regard that “[w]here a complainant has asserted that the respondent has no rights or legitimate interests in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion”. A consensus view has since been developed by subsequent panels, according to which a complainant is required to make a prima facie case that the respondent lacks rights or legitimate interests; once such prima facie case has been made, the respondent then carries the burden of demonstrating rights or legitimate interests in the disputed domain name (see e.g. Belupo d.d. v. Wachem d.d.o.,WIPO Case No. D2004-0110).
In the present case, the Panel finds that the Complainant has made a prima facie case showing that the Respondent has no rights or legitimate interests in the disputed domain name. It is therefore the Respondent’s burden to demonstrate rights or legitimate interests by showing, among other circumstances, any of the following elements (paragraph 4(c) of the Policy):
(i) Before any notice to it of the dispute, he used or made preparations to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) The Respondent is commonly known by the disputed domain name, even if it has acquired no trademark or service mark rights; or
(iii) The Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
In the case at hand, the Respondent did not respond to the Complainant’s allegations and therefore did not rebut the Complainant’s prima facie case, failing to invoke any circumstances that could demonstrate any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
For a complaint to succeed, a panel must be satisfied that a domain name has been registered and is being used in bad faith (Policy, paragraph 4 (a) (iii)).
In the present case, the Complainant argues that the website attached to the disputed domain name was used by the Respondent to carry out phishing activities. The Complainant alleges that these phishing activities would result from an email of October 28, 2011 informing Complainant of such activities. The file does however not contain such email. The Complainant further alleges that it has reported these activities to the Belgium police, but provides the Panel with a document in Flemish that Complainant did not deem necessary to translate in English.
Considering the absence of any evidence to support Complainant’s allegations, the Panel issued a procedural order and invited the Complainant to submit any document that would demonstrate the Respondent’s use in bad faith, more particularly with regards to the alleged phishing activities carried out from the website attached to the disputed domain name. The Complainant did not however respond, let alone within the given deadline.
As a result, the Panel finds it cannot consider that the Complainant has satisfied its burden of proof under this element of the Policy. It is to be remembered that mere allegations do not suffice to demonstrate that the disputed domain name has been registered and is being used in bad faith, and that it is up to the Complainant to bring appropriate evidence with regards to each of the three requirements to be satisfied under the UDRP; the mere holding of a trademark and allegations without any supporting evidence of bad faith registration and usage cannot result in the cancellation or transfer of the disputed domain name. The Panel is mindful of the serious nature of the allegations made in these proceedings (phishing and such other fraudulent on-line activities would be typically clear indicia of bad faith under the Policy when supported by appropriate evidence), that the disputed domain name corresponds to the Complainant’s trademark and that the Respondent has submitted no Response to Complainant’s allegations. But it is still incumbent on a complainant to make its case, especially where it (along with the Respondent) has been presented by the Panel with a further opportunity to supplement the record.
The Policy, paragraph 4(a)(iii) makes it clear that it is up to the Complainant to establish that the Domain Name “has been registered and is being used in bad faith”. The consensus view since the Policy was implemented in 1999 has been that the conjunctive “and” indicates that there must be bad faith both at the time of registration and subsequently (see e.g. Mile, Inc. v. Michael Burg,WIPO Case No. D2010-2011).
In the present case, absent evidence, the Panel considers that the Complainant has failed on the record in these Policy proceedings to demonstrate that Policy, paragraph 4(a)(iii) has been fulfilled. While it is possible that the disputed domain name could be being used for phishing as alleged, it is not clear from the record and there is nothing presently appearing on the disputed domain name from which the Panel could conclude this is an obvious case of bad faith use. There is simply insufficient evidence of record. The Complainant was given ample opportunity to provide such evidence, but did not use it; as a result, it has to bear the consequences of its own action (or inaction) in that regard. 7. Decision
For the foregoing reasons, the Complaint is denied.
Philippe Gilliéron
Sole Panelist
Dated: December 29, 2011
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