The Complainant is Zions First National Bank of Salt Lake City, Utah, United States of America, represented by Callister Nebeker & McCullough, United States of America.
The Respondent is Whois Privacy Services Pty Ltd of Fortitude Valley, Australia / Domain Admin Privacy Ltd. Disclosed Agent for YOLAPT of Isle of Man, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with F (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 23, 2015. On October 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 27, 2015, 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 October 27, 2015 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 October 29, 2015.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 30, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 19, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 23, 2015.
The Center appointed Knud Wallberg as the sole panelist in this matter on November 27, 2015. 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 Zions First National Bank is the owner of the following trademarks registered with the United States Patent and Trademark Office: ZIONS BANK, ZIONSBANK.COM and ZIONS, all registered for various financial services, the earliest registration dating to 2000.
Zions Bancorporation, the parent company of the Complainant, is the registrant of the domain name .
The Respondent registered the disputed domain name on October 13, 2014. 5. Parties' Contentions A. Complainant The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
The Complainant states that the disputed domain name is confusingly similar to the registered marks of the Complainant referenced above.
By including the Complainant's registered mark in the disputed domain name, the Respondent is intentionally creating a likelihood of confusion with the Complainant's marks as to the source, sponsorship, affiliation, or endorsement of the Respondent's website for commercial gain. The Respondent has no rights or legitimate interests in respect of the disputed domain name;
The Respondent is not a licensee of any of the Complainant's trademarks, and has not otherwise obtained authorization to use any of the Complainant's marks.
The Respondent, as an individual, business, or other organization, has not been commonly known by the disputed domain name.
Before the filing of this Complaint, the Respondent has not used, or made demonstrable 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. The disputed domain name was registered and is being used in bad faith.
The Complainant states that the use of a typosquatted version of the Complainant's marks in the disputed domain name indicates that the disputed domain name was registered primarily for the purpose of disrupting the business of the Complainant or otherwise is intended to take advantage of the goodwill associated with the Complainant's registered trademarks.
The Respondent is clearly trying to exploit the goodwill of the Complainant and its trademarks by diverting customers of the Complainant from the Complainant's website to the Respondent's website for commercial gain or for malicious purposes by creating a likelihood of confusion with the Complainant's marks as to the source, sponsorship, affiliation, or endorsement of the Respondent's website.
Because the Respondent's website is misleading, the Respondent may also use it in connection with various phishing and fraudulent activities, just as the website may contain malware.
The disputed domain name has been registered using a privacy or proxy service, which, when combined with the other factors addressed in the Complaint, is an indication of bad faith registration. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, 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 therefrom as it considers appropriate. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant's registered trademark ZIONS BANK since it contains the mark in its entirety, the only difference being that the letter "n" in "bank" is substituted by the letter "m". The addition of the generic Top-Level Domain (gTLD) suffix ".com" does not dispel a finding of confusing similarity where it otherwise exists, as it does in the present case.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name. B. Rights or Legitimate Interests
It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark and given the circumstances of this case, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has not rebutted this and both the absence of any reply to the Complaint as cited above and the way that the Respondent has been and is using the disputed domain name does not support a finding of rights or legitimate interests.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration and use 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 that Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) 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) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site or location or of a product or service on the Respondent's web site or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case and in particular the evidence on record of the Complainant's long term use of its trademark and the distinctive nature of the mark, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant's mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
Also, according to the Complainant the Respondent used the disputed domain at the time when the Complaint was filed to redirect to a website that hosted sponsored links related to the Complainant or its competitors and from which the Respondent presumably earned click-through revenue. Presently, the disputed domain name is used to redirect to third-party websites that are unrelated to the Complainant and its activities, and from which the Respondent may be able to generate revenue.
The Panel finds that the Respondent is using the disputed domain name in bad faith by intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site as mentioned in terms of Policy paragraph 4(b)(iv).
Noting that the disputed domain name incorporates a registered and reputed trademark, that no Response has been filed, and that there appears to be no plausible good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) are also fulfilled in this case. 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.
Knud Wallberg
Sole Panelist
Date: December 10, 2015
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