The Complainant is ZB, N.A., a National Banking Association, dba Zions First National Bank of Salt Lake City, Utah, United States of America ("United States"), represented by Callister Nebeker & McCullough, United States.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, New Providence, the Bahamas. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with Internet Domain Service BS Corp (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 14, 2016. On April 15, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 20, 2016, 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 Registrar did not identify any customer of the Respondent privacy service as the underlying registrant of the Domain Name.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 12, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 13, 2016.
The Center appointed Alan L. Limbury as the sole panelist in this matter on May 26, 2016. 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 has conducted a banking business under the name Zions First National Bank since 1890. It is the proprietor of three United States federally registered service marks for financial services including banking, namely Nos. 2,381,006 ZIONS BANK and 2,389,325 ZIONS, both registered on August 29, 2000; and No. 2,531,436 ZIONSBANK.COM, registered on January 22, 2002. The Complainant offers its banking services through the domain name , registered since 1995 to its parent company, Zions Bancorporation.
The Domain Name was registered on January 19, 2004. The Registrar is unable to confirm the date on which it was registered in the name of the Respondent, a privacy service representing an un-named customer. The Domain Name resolves to a website offering to sell the Domain Name for USD 2,499 and displaying what appear to be links to banking services, including very prominently "Zions Bank Online Banking" and "Zions Bank". 5. Parties' Contentions A. Complainant
The Complainant submits that the Domain Name is confusingly similar to its trademarks and that the Respondent has no rights or legitimate interests in respect of the Domain Name, which was registered and is being used in bad faith. The Respondent has engaged in typosquatting to take advantage of users seeking to find the Complainant's domain name and the services offered at that site but who mistakenly type the Domain Name.
As to legitimacy, the Complainant says it is unaware of any evidence of the Respondent's use of, or demonstrable preparations to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services nor that the Respondent has been commonly known by the Domain Name. The Respondent is not making a legitimate noncommercial or fair use of the Domain Name; is not a licensee of the Complainant's trademarks; has not otherwise obtained authorization to use the Complainant's marks; and is not using the Domain Name as part of a bona fide offering of goods or services or for a legitimate noncommercial use.
It is unnecessary to set out in full the Complainant's submissions as to bad faith. They include that 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 malicious purposes by creating a likelihood of confusion with the Complainant's trademarks. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements on the balance of probabilities:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant. See Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the registered trademarks ZIONS, ZIONS BANK and ZIONSBANK.COM.
In determining confusing similarity, evidence of actual confusion is not required. The test is an objective one, confined to a comparison of the Domain Name and the trademarks alone.
When comparing the Domain Name with the Complainant's trademarks ZIONS and ZIONS BANK, the generic Top-Level Domain ("gTLD") ".com" may be disregarded. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.2, "The applicable top-level suffix in the domain name (e.g., '.com') would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark". In this case the gTLD does form part of the Complainant's trademark ZIONSBANK.COM and accordingly may be taken into account when making the comparison with regard to that particular trademark.
The letters "bznk" are meaningless when considered alone. When considered in the Domain Name , juxtaposed to the distinctive part of the Complainant's marks, namely ZIONS, those letters clearly appear to be a misspelling of the word "bank", which describes the business with which the Complainant's marks are associated.
Therefore, the Panel finds that the Domain Name is confusingly similar to each of the trademarks in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in respect of the Domain Name, for the purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to the Respondent of the dispute, the Respondent's use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the Domain Name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark or service mark at issue.
The Panel finds that the Complainant's marks are distinctive and widely known. The Complainant's assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in the Domain Name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited,WIPO Case No. D2004-0753. The Respondent has made no attempt to do so.
At the time of the Complaint, the Domain Name resolved to a parking website that displayed links to services of the same type as the Complainant. This shows that the Respondent was likely well aware of the nature of the Complainant's services and intentionally attempted to attract Internet users who misspelled the Complainant's trademarks ZIONS BANK and ZIONSBANK.COM and directed them to the Respondent's website, thereby taking advantage of the reputation of the Complainant's trademarks and services to offer services or misleadingly to divert consumers. This is not a legitimate interest. See ACCOR v. Steve Kerry / North West Enterprise, Inc.,WIPO Case No. D2006-0649.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of the Domain Name in bad faith. The fourth circumstance is as follows:
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's website 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 website or location or of a product or service on the Respondent's website or location.
The Domain Name was registered in 2004, many years after the Complainant commenced use of its ZIONS trademark and several years after the Complainant registered its three marks. The Domain Name is an obvious misspelling of the Complainant's ZIONS BANK and ZIONSBANK.COM trademarks and, when attached to the Complainant's ZIONS mark, the otherwise meaningless word "bznk" is a clear misspelling of "bank". Further, the fact that banking services are offered on the website to which the Domain Name resolves is compelling evidence that the Respondent was likely well aware of the Complainant's trademarks and services and that the registration of a domain name confusingly similar to the Complainant's trademarks was a deliberate case of typosquatting, for the purpose of attracting Internet users seeking the Complainant's website to that of the Respondent, thereby creating a likelihood of confusion with the Complainant's marks as to the source, sponsorship, affiliation, or endorsement of that website or of a service on that website. These circumstances lead to the conclusion, in the absence of any innocent explanation, that the Respondent was motivated by commercial gain. Accordingly, the requirements of paragraph 4(b)(iv) of the Policy are met. See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright,WIPO Case No. D2007-0267.
Therefore, the Panel finds that the Domain Name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy. 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 Domain Name be transferred to the Complainant.
Alan L. Limbury
Sole Panelist
Date: June 3, 2016
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