Complainant is Banco Bradesco S/A of Osasco, São Paulo, Brazil, represented by Pinheiro, Nunes, Arnaud & Scatamburlo S/C, Brazil.
Respondents are PrivacyP, Domain Admin of Nobby Beach, Queensland, Australia, and Helton Ferreira Vilas Boas of São Paulo, Brazil. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 12, 2013. On June 12, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. The Complaint listed as Respondent a proxy registration service and listed two disputed domain names.
On June 13, 2013, the Registrar 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 Registrar disclosed that there were two distinct registrants underlying the privacy service registrations for each of the two disputed domain names. The Center sent an email communication to Complainant on June 21, 2013 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 June 26, 2013 in which Complainant withdrew the second disputed domain name (and the registrant identified by the Registrar for that disputed domain name), so that this proceeding could go forward with a single domain name.
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 Respondents of the Complaint, and the proceedings commenced on July 3, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 23, 2013. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on July 24, 2013.
The Center appointed Jeffrey Steinhardt as sole panelist in this matter on July 30, 2013. 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 Banco Bradesco is a major bank and finance business operating in a number of countries. Complainant offers health insurance plans under its finance products, among other things, under the BRADESCO service mark, Brazilian Trademark Registration No. 007170424 registered June 10, 1980, in class 36.
The disputed domain name was registered on May 25, 2013 and resolves to a website displaying links promoting health insurance plans. The plans appear to include Complainant’s insurance offerings. The website home page displays the note “Agente autorizado Bradesco Saúde” (meaning “authorized agent of Bradesco Saúde,” one of Complainant’s health-care plan businesses).1 5. Parties’ Contentions A. Complainant
Under the Policy, Complainant alleges that (1) the disputed domain name is confusingly similar to Complainant’s trademark, (2) that Respondents have no rights or legitimate interests in use of the disputed domain names, and (3) that Respondents registered and use the disputed domain name in bad faith.
The Complaint also alleges, “As far as it is known, Respondent’s activities do not relate to the products commercialized under the BRADESCO trademark and Respondent has never been known to be related or associated to said mark.” The Complaint further alleges, without elaboration or supporting evidence, that Respondents were “using the domain name to lure the Complainant’s clients to input their banking data by means of use of a phishing scam.”
On the basis of these allegations, Complainant requests transfer of the disputed domain name. B. Respondents
Respondents did not formally reply to Complainant’s contentions. 6. Communication by Respondent and Further Procedural Developments
The Panel reviewed the Complaint and analyzed the website to which the disputed domain name routes. The Panel noted that the website displays links that redirect users to one of Complainant’s health insurance product websites.
In the exercise of its discretion under Rules paragraph 10(a), and in the interests of fairness and due expedition, the Panel issued an administrative Panel Order requesting that the parties address critical, potentially dispositive issues which were not addressed in party filings. Panel Procedural Order No. 1, issued August 9, 2013, stated:
“Complainant is requested to submit [. . .] allegations that would indicate: (1) whether the use of the disputed domain name is bona fide under Policy paragraph 4(c); and (2) the nature of the relationship, if any, between Respondent’s use of the disputed domain name and any of the products, services or offerings of Complainant and its affiliated companies, such as Bradesco Saúde S.A.
“Any allegations that Complainant chooses to submit should be supported by specific evidence”.
“Complainant is also requested to submit evidence supporting its allegations in the Amended Complaint
Paragraph 33 that the disputed domain name is being used ‘to lure the Complainant’s clients to input
their banking data by means of use of a phishing scam.’”
On August 13, 2013, in response to Complainant’s inquiry seeking clarification of the Administrative Panel Order No. 1, the Panel extended the deadline for Complainant’s response until August 16, 2013.
On August 13, 2013, the Center received an email from Respondent Helton Ferreira Vilas Boas. The email communication explained in Portuguese that Respondent received a call from a lawyer for Complainant on August 13, 2013. Complainant’s lawyer allegedly said that, even as an insurance broker including for Bradesco Saúde, Respondent could not use the disputed domain name. Under alleged threat of a lawsuit, Respondent stated that his purpose was always to do business including Bradesco health insurance. In its email communication to the Center, Respondent wrote (in translation):
“[…] we amicably reached the conclusion of transferring the domain to Bradesco. In light of the foregoing, I Helton Ferreira Vilas Boas authorize the transfer to Bradesco and apologize for the inconvenience. I must point out that our purpose was always to commercialize Bradesco Health Insurance and that we do not want to cause any problems to the company.”
On August 14, 2013, Complainant also translated and forwarded Respondent’s email communication to the Center, requesting that the Center order the Registrar to unlock the disputed domain name so that it could be transferred in light of the amicable agreement. Complainant did not request a withdrawal of the Complaint or provide a formal settlement agreement.
In light of these communications, on August 15, 2013, the Panel issued Administrative Panel Procedural Order No. 2, stating that the requirements of Order No. 1 were moot and that the deadlines for further submissions from the parties were vacated. 7. Discussion and Findings
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Ordinarily, a complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
As described above, Respondent Helton Ferreira Vila Boas wrote to the Center on August 13, 2013 respecting relinquishment of the disputed domain name, after issuance of the Panel’s Procedural Order No. 1. Having written the August 13, 2013 email described above, the Panel finds that Respondent Ferreira Vilas Boas unilaterally consented to the remedy sought by Complainant.
Under these circumstances, as detailed below, it is unnecessary for the Panel to determine whether Complainant has established its entitlement to transfer under paragraph 4(a) of the Rules See e.g., The Cartoon Network LP, LLLP v. Mike Morgan,WIPO Case No. D2005-1132 (where complainant sought transfer of the disputed domain name, and Respondent genuinely consented to transfer, paragraph 10 of the Rules permits a panel to proceed immediately to make order for transfer without determination of elements of paragraph 4(a)), citing Williams-Sonoma, Inc. v. EZ-Port,WIPO Case No. D2000-0207).
In Williams-Sonoma, Inc., supra, the panel explained:
“Because Respondent has consented to the relief requested by Complainant, it is not necessary to review the facts supporting the claim. I am left to decide the appropriate procedure to conclude the case in a situation not directly addressed by the Rules. Several provisions provide guidance. Rule 10(a) gives the panel the discretion to conduct the proceeding in such manner as it deems appropriate under the Policy and the Rules. Rule 10(c) requires the Panel to ‘ensure that the proceeding takes place with due expedition.’ Rule 12 permits the Panel to require further statements from the parties. Rule 17 requires the Panel to terminate the proceeding when the parties have agreed to a settlement.
“Here, although Respondent has consented to the requested relief, the parties have not agreed to a formal settlement and terminating the proceeding would not effect the parties intent. Under Rules 10 and 12, the Panel appears to have authority to delay the decision and permit the parties time to submit confirmation that they have agreed to a settlement. That procedure, however, would delay this proceeding and impose unnecessary cost on both the parties and WIPO. Under the circumstances, I believe the better course is to enter an order granting the relief requested by the Complainant so that the transfer may occur without further delay.”
For reasons similar to those explained by the panel in Williams-Sonoma, Inc., supra, this Panel finds Respondent’s unilateral consent means that the disputed domain name can be transferred to Complainant without determination of the elements of paragraph 4(a). See also Valero Energy Corporation, Valero Refining and Marketing Company v. RareNames, WebReg,WIPO Case No. D2006-1336.2 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 name be transferred to Complainant.
Jeffrey Steinhardt
Sole Panelist
Date: August 18, 2013
1 The Panel has undertaken limited research by visiting the web pages to which the disputed domain name routes. See Paragraph No. 4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions.
2 The Complaint alleges “As far as it is known, Respondent’s activities do not relate to the products commercialized under the BRADESCO trademark . . . .” As noted above, Respondent’s website visibly links to Complainant’s insurance-products offerings site.
The Panel cannot determine the veracity of the indications, both on Respondent’s website and in the description of the August 13, 2013 conversation between the parties, that Respondent is an authorized broker for Complainant’s insurance products. However, Complainant or its counsel might have avoided bringing this proceeding had it exercised more diligence investigating the facts underlying its Complaint.
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