The Complainant is Amegy Bank National Association of Houston, Texas, United States of America (“US”), represented by Callister Nebeker & McCullough, US.
The Respondent is Domain Admin, Privacy Protection Service Inc d/b/a PrivacyP of Queensland, Victoria, Australia / Mohamed Amarochan of Tangier, Morocco. 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 July 11, 2014. On July 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 15, 2014, the Registrar 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 July 16, 2014, 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 amendment to the Complaint on July 18, 2014.
The Center verified that the Complaint together with the amendment to 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 July 21, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 12, 2014.
The Center appointed Eva Fiammenghi as the sole panelist in this matter on August 26, 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. 4. Factual Background
The Complainant, a subsidiary of Zions Bancorporation Company, is the owner of the following trademarks registered in the United States:
- AMEGY BANK, registered on July 5, 2005 - registration No. 2,979,655 – class 36
- AMEGYBANK (Stylized), registered on June 13, 2006 - registration No. 3,105,196 – class 36
The Complainant declares that it has been using its trademarks AMEGY BANK and AMEGYBANK (Stylized) in commerce since at least as early as January 26, 2005.
The disputed domain name was registered on May 19, 2014. The disputed domain name currently resolves to an inactive webpage. 5. Parties’ Contentions A. Complainant
The Complainant argues that the disputed domain name is confusingly similar to its AMEGY BANK trademarks.
The disputed domain name contains the substantial portion of AMEGY BANK trademarks with the addition of letters, “ro” to the end of the word “Amegy”.
The Respondent is not a licensee of the Complainant and there is no evidence to suggest that the Respondent has registered the disputed domain name to advance legitimate interests.
The Complainant has never licensed or otherwise permitted the Respondent to use its trademarks or to register any domain name including its trademarks.
The Respondent registered and used the disputed domain name in bad faith.
The Complainant requests that the disputed domain name be transferred to it. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the domain name, the Complainant must prove that each of the three following elements are satisfied:
1. The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.A);
2. The Respondent has no rights or legitimate interests in respect of the disputed domain name (see below, section 6.B.); and
3. The disputed domain name has been registered and is being used in bad faith (see below, section 6.C).
Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the 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. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from, as it considers appropriate. A. Identical or Confusingly Similar
The Complainant has shown it owns trademarks rights in the AMEGY BANK trademarks.
The Panel considers the disputed domain name to differ from the AMEGY BANK trademarks by the addition of the letters “ro” in the word “amegy” and the removal of the term “bank” that in this matter can be considered a generic word. According to the Panel, the disputed domain name contains the dominant portion of the Complainant’s trademarks and the abovementioned differences between the trademarks and the disputed domain name are insufficient to remove the confusing similarity. See La Quinta Worldwide L.L.C. v. Satoshi Shimoshita,WIPO Case No. D2007-1241, where the fact that disputed domain name contained the principal textual element of the complainant’s trademarks was considered insufficient to remove the confusing similarity.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks, in which the Complainant has demonstrated, to the satisfaction of the Panel, that it has rights and commercial use of the same for several years.
The first element of the Policy has, therefore, been met. B. Rights or Legitimate Interests
In order to determine whether the Respondent has any rights or legitimate interests in respect of the disputed domain name (paragraph 4(c) of the Policy), the Complainant has made an adequate prima facie showing that the Respondent does not have rights or legitimate interests in respect of the disputed domain name.
The Complainant declares that the Respondent has not authorized or licensed to use the disputed domain name .
The Respondent did not come forward with any evidence that it has any rights or legitimate interests in respect of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name.
The second element of the Policy has, therefore, been met. C. Registered and Used in Bad Faith
Regarding the bad faith requirement, paragraph 4(b) of the Policy lists four examples of acts, whichconstitute evidence of bad faith. This list is not exhaustive, but merely illustrative.
Paragraph 4(b)(iv) of the Policy is particularly relevant to the present case and provides that there is evidence of bad faith in the following circumstances:
“(iv) by using the domain name, the [Respondent] has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] web site or location or of a product or service on its web site or location.”
Based on the record the Panel considers that the Respondent, by registering and using the Domain Name incorporating the dominant portion Complainant’s registered trademarks AMEGY BANK, is in effect attempting to attract the customers to his web page. The Panel notes in this regard that the Respondent’s website could be easily confused with the Complainant’s website and that Internet users may be lead to disclose confidential information.
This fact can be deduced from the possibility for the Internet users to give their email address through the form that can be found on the webpage of the disputed domain name , where on the top of the page there was the slogan: “Get instant cash with….”. Annex 5 to the Complaint.
The Panel finds it likely that Internet users and consumers think that the Respondent is, in some way or another, connected to, sponsored by or affiliated with the Complainant and its business; or that the Respondent’s activities are approved or endorsed by the Complainant. None of which, on the basis of the record in the case file, is, in fact, the situation. Such misleading consequences, in the view of the Panel, are indicative of bad faith on the part of the Respondent.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled. 7. 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 the Complainant.
Eva Fiammenghi
Sole Panelist
Date: August 28, 2014
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