The Complainant is ZB, N.A., a national banking association, dba Vectra Bank Colorado of Salt Lake City, Utah, United States of America (“USA”), represented by TechLaw Ventures, PLLC, USA.
The Respondent is Wang Lian Feng of Beijing, China. 2. The Domain Names and Registrar
The disputed domain names and are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2018. On March 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On March 15, 2018, 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. On March 16, 2018, the Center sent an email to the Parties in English and Chinese regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on March 20, 2018. The Respondent did not comment on the language of the proceeding by the specified due date.
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 in English and Chinese of the Complaint, and the proceedings commenced on March 23, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 13, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on April 19, 2018. 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, is an American banking institution that has been trading under the name Vectra Bank since 1989.
The Complainant owns numerous trademark registrations in USA, inter alia, for VECTRA BANK (registration no. 2,361,580, registered on June 27, 2000) or VECTRA (registration no. 1,604,952, registered on July 3, 1990) registered for “banking services”. The parent company of the Complainant has been the registrant of the domain name since 1996.
The Respondent is an individual based in China.
The disputed domain names were registered on February 20, 2018. They do not resolve to any website. 5. Parties’ Contentions A. Complainant
The Complainant’s contentions are as follows:
Identical or confusingly similar
The Complainant contends that the dispute domain names and are confusingly similar to the Complainant’s registered trademark VECTRA BANK and/or as the disputed domain names incorporate the VECTRA BANK and/or VECTRA mark. In the case of the VECTRA mark, the inclusion of a non-distinctive and/or descriptive term (“bank”) and the addition of the generic Top-level Domains (“gTLDs”) do not avoid the finding of confusing similarity.
No rights or legitimate interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any license or trademark registration for VECTRA BANK or VECTRA.
The disputed domain names were registered and are being used in bad faith
Before acquiring the disputed domain names, it is highly likely that the Respondent knew of the Complainant’s rights in the VECTRA BANK or VECTRA mark because of its distinctive character. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of proceedings
The language of the Registration Agreements is in Chinese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant requested the language of the proceeding be English on the grounds that the Complainant is an organization in USA and unable to communicate in Chinese, the disputed domain names are in English, and if the Complainant were to translate documents in Chinese, the proceedings may be delayed and the Complainant would incur unnecessary expense and the proceedings may be delayed.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel.
On the facts of this case, the Panel does not consider it appropriate to require the Complainant to translate the Complaint as it will unnecessarily delay the proceeding. This is a clear case of cybersquatting that the Policy was designed to stop.
Further, the Respondent did not respond to the Center’s preliminary determination. This Panel decided in Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”.
The Panel will render its decision in English. 6.2 Substantive Issues A. Identical or Confusingly Similar
The disputed domain names and are confusingly similar to the Complainant’s VECTRA BANK and VECTRA trademarks.
They incorporate the Complainant’s registered trademark VECTRA BANK in its entirety or VECTRA together with the generic term “bank”. According to previous UDRP decisions, the “addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.” (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The Panel notes that the Complainant does not rely on any registered trademarks for VECTRA BANK or VECTRA in China where the Respondent is located. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview 3.0).
The first element of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
Section 2.1 of the WIPO Overview 3.0 provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names.
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain names.
The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain names and were registered in bad faith and are being used in bad faith.
Paragraph 4(b)(iv) of the Policy provides that a registrant has registered and is using a domain name in bad faith where:
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 your website or location or of a product or service on your website or location.”
Even though the domain names are not currently in use to resolve to a website, noting that the disputed domain names comprise the Complainant’s identical mark (in the banking industry) any use would unfairly play off of an implied affiliation with the Complainant to attract users familiar with the Complainant. The fact the disputed domain names do not resolve to any pages does not preclude a finding that they have been used in bad faith. It is well established that passive use or non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding. (WIPO Overview 3.0, section 3.3).
The third part of paragraph 4(a) of the Policy is therefore satisfied. 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 names, and be transferred to the Complainant.
Douglas Clark
Sole Panelist
Date: May 7, 2018
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