The Complainant is ABSA Bank Limited, South Africa, represented by KapdiTwala Inc. t/a Dentons South Africa, South Africa.
The Respondent is Mike Nike, Kristone Global Pty, South Africa. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 4, 2019. On July 5, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 5, 2019, 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 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 July 9, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 29, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 30, 2019.
The Center appointed Ellen B Shankman as the sole panelist in this matter on August 5, 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 date of the Domain Name registration was confirmed by the Registrar to be September 26, 2018.
The trademark ABSA BANK serves as a house-mark of the Complainant and is protected as a registered trademark in South Africa. The Complainant provided evidence of multiple trademark registrations for the mark ABSA BANK – e.g., ABSA BANK, South Africa Registration No. 1991/07437 in class 36 (registered on March 3, 1994); ABSA BANK BUREAU DE CHANGE, South Africa Registration No. 1992/07324 (registered on May 3, 1995) in Class 36; and, ABSA COMMUNITY BANKING, South Africa Registration No. 2000/04591 in Class 36 (registered on December 19, 2003), all of which predate the date of the Domain Name registration.
The Panel also conducted an independent search to determine that the Domain Name is currently active, and has a “parking page” with links to advertisements for monetary transfers. 5. Parties’ Contentions A. Complainant
The Complainant is a diversified financial services provider, offering an integrated suite of products and services across retail, business, corporate, investment, and wealth banking, as well as investment management and insurance under the house-mark ABSA BANK. The Complainant, headquartered in South Africa, is a publicly traded, limited liability entity listed on the Johannesburg Stock Exchange (the JSE). In addition, the Complainant launched its international presence in London operating as “Absa Securities UK”. That office caters for the needs of corporate and investment bank customers based in the United Kingdom and Europe, and who operate and invest in Africa. The Complainant has a diverse shareholder base with 847.8 million shares in issue and as of December 31, 2018, its market capitalization was R 137.2 billion.
The Complainant serves customers through multiple channels, so that its clients transact across multiple platforms and devices, including point-of-sale devices, telephone, digital solutions (online and app solutions) or face-to-face engagements (corporate offices). The Complainant boasts 1,074 branches, 10,069 automated teller machines (ATM’s), and 40,856 employees.
The Complainant alleges that the Domain Name is identical or confusingly similar to their own registered mark ABSA BANK. The Complainant has submitted that it has not consented to or given permission for the Respondent to use its marks or to register the Domain Name and that there is no business relationship between the Parties. It has also submitted that the Respondent does not operate a bona fide business under the Domain Name but is rather using it as an advertising platform to advertise the services of the Complainant’s competitors in the banking industry. The Complainant has also asserted that the Respondent is not commonly known by the Domain Name and further there is no evidence that the Respondent is making a legitimate noncommercial or fair use of the disputed name. The Respondent registered the Domain Name with the Complainant’s trademark in mind and/or to trade off its goodwill and with the specific intent to interfere with the Complainant’s business, which is mostly focused on the provision of banking and financial services in South Africa. The Domain Name intentionally attempts to channel Internet traffic to the Respondent’s webpage by virtue of the active website, and for the purpose of generating revenue pay-per-click (“PPC”) advertising relating to banking services and to attract Internet users by creating a likelihood of confusion with the Complainant’s ABSA BANK trademark and misleading Internet users under the Domain Name.
The Respondent’s Domain Name resolves to and includes PPC links to other financial services business, including “TymeBank”, which is a competitor of the Complainant in the lower segment of the retail banking market. The use of the Domain Name amounts to intentionally attempting to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the affiliation or sponsorship of the Respondent’s website.
To summarize the Complaint, the Complainant is the owner of multiple registrations for the trademark ABSA BANK, in respect of a broad range of financial services. The Domain Name is confusingly similar to the trademark owned by the Complainant. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Domain Name was registered and is being used in bad faith. That continued use of the Domain Name would lead to a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Respondent by the Complainant, especially for competing goods and services. Thus, the Respondent’s registration and use of the Domain Name constitutes bad faith registration and use under the Policy, and the Complainant requests transfer of the Domain Name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The burden for the Complainant under paragraph 4(a) of the Policy is to prove:
(i) the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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. Identical or Confusingly Similar
The Panel finds that the Complainant has satisfactorily proven that it has registered trademark rights for ABSA BANK.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s trademark. See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd.,WIPO Case No. D2001-0110, stating “[t]he incorporation of a Complainant’s well-known trademark in the registered Domain Name is considered sufficient to find the Domain Name confusingly similar to the Complainant’s trademark”.
See also, WIPO Overview of WIPO Panel Views on Select UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7:
“[…] in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.”
Accordingly, the Panel finds that the Complainant has satisfied the first requirement that the Domain Name is identical or confusingly similar to the Complainant’s registered trademark, under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often-impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of a respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden of production to a respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once a complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name and that it is not related to or affiliated in any way with the Complainant, nor has the Complainant authorized the Respondent to use its trademarks.
Based on the available record, the Panel finds that the Complainant has established a prima facie case, which was not refuted, and that the Respondent lacks rights or legitimate interests in the Domain Name.
Therefore, the Complainant has satisfied the second requirement that the Respondent has no rights or legitimate interests in the Domain Name, under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Given the distinctiveness of the Complainant’s trademark and reputation, the Panel agrees with the Complainant’s claims that the Respondent has registered the Domain Name with full knowledge of the Complainant’s trademark ABSA BANK and uses it for the purpose of misleading and diverting Internet traffic.
The Panel finds that this is a classic example of the unfortunate and opportunistic typosquatting registration that the UDRP is intended to address, and finds that the Respondent is using the Domain Name opportunistically to benefit financially from the Complainant’s trademark by way of PPC links.
Thus, the Panel finds that the Respondent’s use of the Domain Name creates confusion as to the source of the Domain Name in an attempt to trade on the goodwill associated with the Complainant’s trademark. A respondent’s use of a complainant’s mark - for said respondent’s commercial benefit - to attract Internet users otherwise seeking said complainant, evinces a finding of bad faith per Policy paragraph 4(b)(iv) and is consistent in this case. See WIPO Overview 3.0 at section 3.1.4, which states:
“[p]anels have moreover found the following types of evidence to support a finding that a respondent has registered a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark: (i) actual confusion, (ii) seeking to cause confusion (including by technical means beyond the domain name itself) for the respondent’s commercial benefit, even if unsuccessful, (iii) the lack of a respondent’s own rights to or legitimate interests in a domain name, (iv) redirecting the domain name to a different respondent-owned website, even where such website contains a disclaimer, (v) redirecting the domain name to the complainant’s (or a competitor’s) website, and (vi) absence of any conceivable good faith use.”
Given the evidence of the Complainant’s prior rights in the trademark, the timing of the registration of the Domain Name with apparent full knowledge of the Complainant, and the use of PPC links for financial transfers, the Panel finds that the Complainant has satisfied the third requirement that the Respondent has registered and is using the Domain Name in bad faith, under 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 Domain Name be transferred to the Complainant.
Ellen B Shankman
Sole Panelist
Date: August 9, 2019
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