The Complainant is ABSA Group Limited (previously ABSA Bank Limited), South Africa, represented by Moore Attorneys Incorporated, South Africa.
The Respondent is Perfect Privacy, LLC, United States of America (“United States”) / Milen Radumilo, Romania. 2. The Domain Name and Registrar
The disputed domain name is registered with Snapnames 45, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 10, 2019. On May 13, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 13, 2019, 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 May 14, 2019 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 amended Complaint on May 15, 2019.
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 proceedings commenced on June 20, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2019.
The Center appointed Gabriel Leonardos as the sole panelist in this matter on July 17, 2019. 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 a company founded in 1991 through the merger of United Bank (South Africa), the Allied Bank (South Africa), the Volkskas Bank Group and certain interests of the Sage Group. The Complainant is one of Africa’s major financial service providers – offering personal and business banking, credit cards, corporate and investment banking, wealth and investment management, and insurance.
The Complainant owns numerous trademark registrations for the sign ABSA in classes 9, 16, 35, 36, 39, 41, and 42 before South Africa Companies and Intellectual Property Commission. The first registration was granted in January 5, 1994.
The Complainant also owns registrations for the trademark “ABSA” in other jurisdictions, such as Angola, Botswana, China, Egypt, India, Uganda, the United Kingdom, and Zimbabwe.
The Complainant is the registrant of many domain names composed by the same distinctive mark ABSA, such as the domain name registered and used since January 1, 1995.
The disputed domain name was registered on August 18, 2018. The disputed domain name redirects to a parking page with commercial links (“pay-per-click”) related to the Complainant’s business. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain name is a replication of the Complainant’s registered ABSA and ABSA PREMIERSHIP trademarks, under which the Complainant provides financial / banking services and sport sponsorship, since it is the official sponsor of the South African Premier League for football.
The Complainant submits that the disputed domain name entirely incorporates its registered trademark ABSA, which is the dominant feature of the disputed domain name. In this sense, the Complainant affirms that the addition of “premier league” increases the likelihood of confusion as it has registered trademarks for ABSA PREMIERSHIP to identify its sponsorship programs.
Besides, the Complainant pleads that the Respondent has no rights or legitimate interests in respect of the disputed domain name, since (i) it diverts to a pay-per-click website advertising soccer-related services and (ii) the Respondent does not operate a genuine business under the disputed domain name, as such the disputed domain name is not connected with a bona fide offering of goods and services.
According to the Complainant, this means that the Respondent registered the disputed domain name with an intention to commercially profit by infringing the Complainant’s trademark, what is confirmed by the fact that the Respondent’s website has a “for sale” notification with a link to an online domain name selling platform.
Moreover, the Complainant claims that the Respondent registered and is using the disputed domain name in bad faith falling under the prevision of Policy, paragraphs 4(a)(iii), 4(b) and Rules, paragraph 3(b)(ix)(3). That is because the Respondent registered the disputed domain name as an attempt to confuse the public into believing that the disputed domain name is that of the Complainant and to generate advertisement revenue as a result of the goodwill and reputation inhering in the Complainant’s ABSA and ABSA PREMIERSHIP trademarks.
In view of the above, the Complainant requests the disputed domain name to be transferred to the Complainant, ABSA Group Limited. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all the elements listed in paragraph 4(a) of the Policy have been satisfied, as following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The burden of proving these elements is on the Complainant. A. Identical or Confusingly Similar
The Complainant has duly proven that the first element under paragraph 4(a) of the Policy is met by evidencing it owns several trademark registrations for ABSA worldwide and that such trademark is contained in its entirety in the disputed domain name . See, section 1.8 of the WIPO Overview of WIPO Panel View on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Thus, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
Therefore, the Panel considers the requirements of the first element of paragraph 4(a) of the Policy satisfied. B. Rights or Legitimate Interests
The Respondent had twenty days to submit a response according to paragraph 5(a) of the Rules and failed to do so. Paragraph 5(f) of the Rules establishes that if a respondent does not respond to the complaint, the panel’s decision shall be based upon the complaint.
The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy is summarized in section 2.1 of the WIPO Overview 3.0 as follows: “[W]here 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 disputed domain name was registered on August 18, 2018, that is, several years after the registration of the Complainant’s first trademark ABSA and domain name . The Panel acknowledges that the Complainant’s trademark is widely known, and, as a result thereof, the Panel holds that the Respondent must have been aware of the Complainant’s trademark at the time of registration.
The Panel finds that the Complainant has never entered into any agreement with the Respondent nor granted any authorization or license to the Respondent regarding the use of the Complainant’s trademark, nor is the Respondent affiliated with the Complainant’s activities.
Accordingly, the Complainant established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Since the Respondent has not replied to Complainant’s contentions and, thus, has not presented any evidence or elements to justify any rights or legitimate interests in connection with the disputed domain name, the Panel has found no indication that any of the circumstances described in paragraph 4(c)(i)-(iii) of the Policy could apply to the present matter.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)). C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists several circumstances that, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances include: “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”
The Panel finds it highly unlikely that the Respondent had no knowledge of the Complainant’s rights to the trademarks ABSA and ABSA PREMIERSHIP at the time of registration of the disputed domain name, taking into consideration its protection and activity worldwide; on the contrary, the evidence shows that the Respondent was likely deliberately trying to create confusion.
In addition, the Complainant also owns registered trademarks for the expression ABSA PREMIERSHIP as it is the official sponsor of the South African Premier League for football, which increase the likelihood of confusion since the disputed domain name also incorporates the root “premier”.
The Panel acknowledges that ABSA Group Limited is a widely known company and believes the disputed domain name may cause confusion, since its feature, namely “absapremierleague”, reproduces the Complainant’s trademarks.
The Panel agrees that the content found in the disputed domain name (pay-per-click advertisements related to soccer events) confirms that the Respondent registered the disputed domain name with the intention to wrongly attract the Complainant’s clients and pursue commercial gains with their access to the website.
In this connection, the Panel notes that the disputed domain name points to a pay-per-click parking page,i.e. webpage in which there are several links related to soccer events. Considering that the Complainant is the official sponsor of several sports events, the Panel is of the opinion that such use of the disputed domain name is further evidence of bad faith.
Thus, the Panel concludes that the Respondent acts in bad faith for the following reasons:
(i) the widespread reputation of the Complainant’s products and services makes it highly unlikely that the Respondent had no prior knowledge of the Complainant’s rights in its registered trademarks at the moment of the disputed domain name registration;
(ii) the Respondent has no legitimate interests in the disputed domain name;
(iii) the Respondent’s disputed domain name reproduces the Complainant’s word trademarks; and
(iv) the disputed domain name misrepresents the Complainant and deceives their customers or potential customers by leading them to think that they are accessing ABSA’s official website, while instead they are redirected to a parking page with commercial links.
Lastly, the Panel notes that, in conjunction with all of the abovementioned, the fact that the Respondent did not present any response to the Complaint reinforces the conclusion that Respondent acted in bad faith.
Accordingly, the Panel concludes that the disputed domain name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.
As such, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) 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 disputed domain name be transferred to the Complainant, ABSA Group Limited.
Gabriel F. Leonardos
Sole Panelist
Date: August 6, 2019
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