The Complainant is Commonwealth Bank of Australia of Perth, Western Australia, Australia, represented by Wrays, Australia.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama / Lord Oxford of Piggabeen, New South Wales, Australia, self-represented. 2. The Domain Names and Registrar
The disputed domain names and are registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2018. On April 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On April 7, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 11, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On April 14, 2018, the Respondent submitted three informal emails with the same content. The Complainant filed an amended Complaint on April 16, 2018.
The Center verified that the Complaint together with the amended 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 proceeding commenced on April 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 8, 2018. On April 18, 2018, the Respondent submitted 13 informal emails with the same content, requesting the Complaint and attachments in plain text. The Respondent did not file a substantive Response before the specified due date. Accordingly, on May 9, 2018, the Center notified the Parties of the commencement of the panel appointment process. On May 10, 2018, the Respondent submitted two further emails to the Center.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 15, 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.
On May 21, 2018 and May 23, 2018, the Respondent submitted two further emails to the Center. 4. Factual Background A. Complainant
The Complainant is a well-known Australian bank and the owner, since December 2008, of The Bank of Western Australia Ltd, a bank which is operated as a semi-autonomous division of the Complainant.
The Complainant is the owner of numerous registrations in Australia for the trade mark BANK WEST (the “Trade Mark”), the earliest dating from January 14, 1994 (registration No. 628382). The Trade Mark has been used by the Complainant and by The Bank of Western Australia Ltd continuously since 1994 in Australia, in respect of banking and financial services. B. Respondent
The Respondent appears to be an Australian individual. C. The Disputed Domain Name
The disputed domain names were both registered on the same date, January 10, 2018. D. The Website at the Disputed Domain Name
The disputed domain names resolve to the same website which provides rambling “stream of consciousness” commentary on various environmental, social and political issues under the name “SavingTheP” (the “Website”). 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names have been registered and are being used in bad faith. B. Respondent
The Respondent did not file a formal Response and did not make any submissions in response to the Complaint, instead choosing to send rambling, aggressive and accusatory emails to the Center (including vulgar language). The Respondent also asserted that the disputed domain names are spoonerisms, and that the planned use of the disputed domain names is in respect of a website about Israel’s West Bank dispute. 6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain names incorporate the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7). Excluding the generic Top-Level Domains “.site” and “.website”, the disputed domain names are identical to the Trade Mark.
The Panel therefore finds that the disputed domain names are identical to the Trade Mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or 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; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names have been used in respect of the Website, which provides rambling stream of consciousness content, including various conspiracy theories. The content of the Website, whilst not directly naming the Complainant or The Bank of Western Australia, includes the following disparaging commentary directed against banks in general:
“Corporate, mining and banking entities just want more consumers to rip off, Governments likewise”;
“Thieves come and take what they want for themselves. Bankers do it with legal indemnity – even legal help”;
“We know it is wrong and harmful, but we are addicted to it more than a smoker to cigarettes, but there is no corporate or government quit campaign, just a lot of bankers and governments wanting it’s great taxability, eagerly expanding extraction whilst saying “we’ll try to cut down”.”
The Website does not contain any content regarding Israel’s West Bank dispute.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names. Moreover, the Panel finds that even a general right to legitimate criticism does not necessarily extend to registering or using a domain name identical to a trade mark. In this case, the disputed domain names are identical to the Trade Mark. See section 2.6 of WIPO Overview 3.0.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith
The Panel finds it is inconceivable that the Respondent, apparently located in Australia, was unaware of the Complainant and of its rights in the Trade Mark when registering the disputed domain names, which are both identical to the Trade Mark. The disputed domain names are so obviously connected with the Complainant, and the Respondent has no connection with the Complainant. The Panel finds that the Respondent has registered the disputed domain names in order to divert Internet users who are searching for the Complainant to the Website. The Panel considers it is no coincidence that the Website includes the above highlighted disparaging commentary against banks.
The Panel further finds the Respondent’s assertion that the planned use of the disputed domain names is in respect of a website concerning Israel’s West Bank dispute, an assertion wholly unsupported by any evidence, incredible. The Panel is also, incidentally, unable to discern how the disputed domain names are said to be spoonerisms.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith. 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.
Sebastian M.W. Hughes
Sole Panelist
Dated: May 29, 2018
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