The Complainant is Comerica Bank of Dallas, Texas, United States of America, represented by Bodman PLC, United States of America.
The Respondent is Namespro Private WHOIS of Richmond, Alberta, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with DNC Holdings, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2014. On April 15, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 17, 2014, the Registrar 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 April 24, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was May 14, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 15, 2014.
The Center appointed Edoardo Fano as the sole panelist in this matter on May 20, 2014. 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 Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties.
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent”. Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a response from the Respondent.
The language of the proceeding is English, being the language of the Registration Agreement as per paragraph 11(a) of the Rules. 4. Factual Background
The Complainant is Comerica Bank of Texas, a financial services company among the 40 largest United States holding companies, owning several trademark registrations for COMERICA, among which:
- United States Trademark Registration No. 1,251,846 for COMERICA, registered on September 20, 1983;
- United States Trademark Registration No. 1,251,846 for COMERICA and device, registered on June 8, 1993.
The Complainant provided evidence in support of the above.
The disputed domain name was registered on July 16, 2013. At the time of filing of the Complaint, the disputed domain name resolved to a website displaying several pay-per-click links, mainly related to the banking and finance sectors. 5. Parties’ Contentions A. Complainant
The Complainant states that the disputed domain name is confusingly similar to its trademark COMERICA.
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorised by the Complainant to register the disputed domain name or to use its trademark within on the concerned website, nor is it commonly known by the disputed domain name.
The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith, since it was registered with the only purpose to attract Internet users for commercial gain by creating a likelihood of confusion with the Complainant’s trademark. B. Respondent
The Respondent has made no formal substantive reply to the Complainant’s contentions and is in default. In reference to paragraphs 5(e) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences by the panel, in accordance with paragraph 14(b) of the Rules, may be drawn see Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL INTERNATIONAL PLC v. MARK FREEMAN,WIPO Case No. D2000-1080; ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al.,WIPO Case No. D2000-0848; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A.,WIPO Case No. D2007-0288). 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed:
(i) the disputed domain name 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant is the owner of the registered trademark COMERICA and that the disputed domain name is confusingly similar to the trademark COMERICA.
Regarding the addition of the letter “c” in the disputed domain name, the Panel notes that it is not enough to differentiate the latter from the Complainant’s trademark COMERICA, since the visual and phonetic impressions are still very similar. Such practice is known as “misspelling” or “typosquatting”, and has been widely condemned in several UDRP decisions, including The Nasdaq Stock Market, Inc. v. NSDAQ.COM, NASDQ.COM and NASAQ.COM, WIPO Case No. D2001-1492; Playboy Enterprises International Inc. v. SAND WebNames - For Sale,WIPO Case No. D2001-0094; Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc.,WIPO Case No. D2000-0587; Pig Improvement Company, Inc. v. Platinum Net, Inc.,WIPO Case No. D2000-1594.
It is also well accepted that a top-level domain suffix, in this case “.com”, may be ignored when assessing the confusing similarity between a trademark and a domain name, see, e.g., VAT Holding AG v V,WIPO Case No. D2000-0607.
The Panel finds that the Complainant has therefore satisfied the first element of showing that the disputed domain name is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
The Respondent has failed to file a Response in accordance with the Rules, paragraph 5.
The Complainant, in its Complaint and as set out above, has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It asserts that the Respondent is not using the disputed domain name for a legitimate noncommercial or fair use or in connection with a bona fide offering of goods or services.
The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has a rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name.
The Panel therefore finds that the Policy, paragraph 4(a)(ii), has been satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that “for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that [the respondent has] registered or has 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 its documented out-of-pocket costs directly related to the domain name; or
(ii) that [the respondent has] 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 [the respondent has] engaged in a pattern of such conduct; or
(iii) that [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site 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 [the respondent’s] website or location or of a product or service on [the respondent’s] web site or location.”
As regards to the registration of the disputed domain name in bad faith, the registration of the Complainant’s trademark COMERICA has been proved, and the Panel finds that the Respondent knew or must have known the Complainant and/or its trademark, especially because the website at the disputed domain name refers to the banking and finance sectors, therefore relating to main business activity of the Complainant. In this Panel’s opinion, the disputed domain name was registered in bad faith.
As regards the use of the disputed domain name in bad faith, the website at the disputed domain name is a page with several links, possibly automatically generated, mainly referring to the banking and finance sectors.
The Panel considers that the use of the website associated with the disputed domain name must be considered in bad faith, as some of the links on the website at the disputed domain name, even in the case they are automatically generated, refer to one of the main business activities of the Complainant and are therefore likely to create confusion, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 3.4.
All of the above suggests to the Panel that the Respondent intentionally registered and is using the disputed domain name in order to attract, for commercial gain, Internet users to its website in accordance with paragraph 4(b)(iv) of the Policy.
The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) 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.
Edoardo Fano
Sole Panelist
Date: May 30, 2014
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