The Complainant is Zions Bancorporation, N.A., United States of America (“United States”), represented by TechLaw Ventures, PLLC, United States.
The Respondent is Lance Creative Agency, Nigeria. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2020. On March 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 10, 2020, 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 March 12, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 1, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 3, 2020. The Center appointed Reyes Campello Estebaranz as the sole panelist in this matter on April 21, 2020. 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 national banking association, founded in 1873 and doing business as Zions First National Bank since 1890, which operates in United States providing a wide range of traditional banking and innovative technology financial services, including mortgage and home equity loans, credit cards, private and executive banking services, as well as online and mobile banking. The Complainant provides financial services for both individuals and businesses or corporations, operating through various divisions in multiple states under different trade names and trademarks, including the trade name “Zions Bank” and the trademarks ZIONS and ZIONS BANK. The Panel has consulted the Complainant’s website under the general powers of the Panel articulated inter alia in paragraphs 10 and 12 of the Rules. The Complainant holds registered trademark rights in the marks ZIONS and ZIONS BANK, of which the following are sufficiently representative for the present proceeding: United States Trademark No. 2,381,006 ZIONS BANK, word, registered on August 29, 2000 in class 36; The Complainant further owns the domain name The disputed domain name was registered on February 26, 2020. At the date of this decision, the disputed domain name is inactive resolving to a page with an Internet browser error message. However, according to evidence filed by the Complainant, it was previously linked to a website, in English language, apparently owned by a company that identified itself as “Zion Trust Bank”, which offered various banking services, including loans, credits, investments, wealth management and online banking services. This website included in its heading, before the text content of the site, the words “Zion Trust Bank” preceded by a logo (representing a letter “z” within a circle), providing at its footer contact information through a telephone number, an email address and an address in California. 5. Parties’ Contentions A. Complainant Key contentions of the Complaint may be summarized as follows: The disputed domain name incorporates almost identically the trademark ZIONS, adding the terms “trust” and “group” that allude to the same services provided by the Complainant under this mark, and being the disputed domain name linked to a website allegedly providing banking services, which exacerbates the likelihood of confusion. There is a high risk that Internet users may believe there is a connection between the disputed domain name and the Complainant and/or its trademarks. The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name and has acquired no trademark rights over the terms “zion trust group”. The Respondent is not a licensee of the Complainant and has not otherwise been authorized to use the Complainant’s trademarks. There is no evidence of 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. The disputed domain name is used, with the intent for commercial gain, to misleadingly diverting Internet users to a website that contains many aspects indicating it does not belong to a real bank. The address provided as contact in this website contains two street names, no city and an invalid zip code and the content of the website alludes to 99,000 customers although the disputed domain name was registered only weeks before the filing of the Complaint. Further, the login option uses the client’s bank account number to long in, instead of a login user identification (as is normal in financial institutions’ websites), which may enable the Respondent to obtain the bank account number and other personal information from the Complainant’s customers. The disputed domain name was registered and is being used in bad faith. The Complainant’s trademarks are notorious and highly specific. The Respondent cannot credibly claim it was unaware of these marks when registering the disputed domain name. The disputed domain name was registered targeting the trademarks ZIONS and ZIONS BANK for the purpose of disrupting the Complainant’s business and taking advantage of the goodwill associated to these trademarks by diverting the Complainant’s customers to the website associated to the disputed domain name for commercial gain or malicious purposes in connection with phishing or other fraudulent activities. The disputed domain name is linked to a false website with the appearance of a banking institution’s online site, which presumably may be used to entice the Complainant’s customers to submit account information in order to log in to their accounts. The Complainant has cited numerous previous decisions under the Policy as well as various sections of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) that it considers supportive of its position. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that, in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (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. The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has authority to decide the dispute. Paragraph 15(a) of the Rules provides that “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. The Panel has taken into consideration all of the evidence, annexed material and submissions provided by the Parties, and has performed some limited independent research under the general powers of the Panel. See section 4.8 of the WIPO Overview 3.0. A. Identical or Confusingly Similar 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 identical or confusingly similar to that mark for purposes of the Policy. In such cases, the addition of terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. Further, the applicable generic Top-Level Domain (“gTLD”) in a domain name is considered a standard technical registration requirement and, as such, is generally disregarded under the first element confusing similarity test. See sections 1.7, 1.8, and 1.11 of WIPO Overview 3.0. The Complainant indisputably has rights in the registered trademark ZIONS, incorporated in the disputed domain name almost in its entirety, omitting only its last letter “s”, followed by the terms “trust” and “group” does not prevent a finding of confusing similarity with the mark. The Complainant’s mark ZIONS is recognizable in the disputed domain name, and the gTLD “.online” is a technical requirement, generally disregarded for the purpose of the analysis of confusing similarity. Accordingly, this Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark, and the first element of the Policy under paragraph 4(a)(i) has been satisfied. B. Rights or Legitimate Interests Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP 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 Respondent’s knowledge. Thus, the consensus view is that paragraph 4(c) of the Policy shifts to the Respondent the burden of coming forward with evidence of rights or legitimate interests in the disputed domain name, once the Complainant has made a prima facie showing indicating the absence of such rights or legitimate interests. The Complainant’s assertions and evidence effectively shift the burden to the Respondent of producing evidence of rights or legitimate interests in the disputed domain name, providing paragraph 4(c) of the Policy the circumstances, without limitation, that may establish rights or legitimate interests in the disputed domain name in order to rebut the Complainant’s prima facie case. However, the Respondent has not replied to the Complainant’s contentions. A core factor in assessing fair use of a domain name is whether the domain name falsely suggests affiliation with the Complainant’s trademark. See section 2.5, WIPO Overview 3.0. The disputed domain name incorporates the Complainant’s trademark ZIONS with only a minor difference, omitting its last letter “s”, followed by terms the terms “trust” and “group” that allude to the same banking business of the Complainant and may refer, specifically, to the Complainant’s division group and/or the Complainant’s division in California. The Complainant operates through various divisions, all part of a single bank, under different trade names and trademarks, including “Amegy Bank”, “The Commerce Bank of Oregon”, “The Commerce Bank of Washington”, “National Bank of Arizona”, “Nevada State Bank”, “California Bank & Trust”, and “Zions Bank”, or closely similar variations thereof. The Panel, under the general powers articulated in the Policy, has consulted the Complainant’s website. Further, an extract provided by the Complainant shows that the website that was linked to the disputed domain name referred to a banking business, providing various financial services and online banking services, and contains aspects that may point to a fraudulent use (indicating a false or wrong address and requesting bank account numbers to long in). The Panel further notes the high presence over the Internet of the trademarks ZIONS and ZIONS BANK in connection to banking and financial services, as well as its continuous use in United States and, particularly, in California, where the website that was linked to the disputed domain name indicated a contact address. Therefore, the Panel considers that there is a risk of implied affiliation and confusion that may lead Internet users to believe that the disputed domain name is owned or related to the Complainant or to one of the Complainant’s divisions (probably its California division). It is further remarkable that the Respondent has not replied to the Complaint, not providing any explanation connected to any of the circumstances included in paragraph 4(c) of the Policy or any other that may be considered as a fair use or legitimate interest in the disputed domain name. On the contrary, the website that was linked to the disputed domain name has been apparently taken down, being the disputed domain name currently inactive resolving to a page with an Internet browser error message. All the above-mentioned circumstances lead the Panel to conclude that the Respondent has not produced evidence to rebut the Complainant’s prima facie case, and all the cumulative facts and circumstances indicate that the Respondent lacks any rights or legitimate interests in the disputed domain name. Therefore, the second element of the Policy under paragraph 4(a)(ii) has been established. C. Registered and Used in Bad Faith The Policy, paragraph 4(a)(iii), requires that the Complainant establish that the disputed domain name has been registered and is being used in bad faith. At the time of the registration of the disputed domain name, this Panel considers it unlikely that the Respondent did not know about the trademark ZIONS, and did not have it in mind. Several factors in this case lead to this conclusion. Particularly, the nature of the disputed domain name, which incorporates almost identically the mark ZIONS, adding terms that refer to the same Complainant’s business and may refer, specifically, to the Complainant’s division group and/or its division in California. Further, the continuous use by the Complainant of the term “zions” to identify its business over more than a century (since 1890), as well as the extensive use, promotion and Internet presence of the trademarks ZIONS and ZIONS BANK, lead the Panel to conclude that these marks are notorious in the banking and financial services sector. The Panel further considers that all cumulative circumstances of this case point to bad faith registration and use of the disputed domain name: (i) the disputed domain name incorporates the Complainant’s trademark ZIONS almost in its entirety, adding terms referred to the same financial business of the Complainant, to the Complainant’s divisions group and/or to one of the Complainant’s divisions, intrinsically creating a likelihood of confusion and affiliation; (ii) the Complainant’s trademarks ZIONS and ZIONS BANK are notorious in the financial sector; (iii) the disputed domain name has been used to host a website in the same sector of the Complainant’s business (financial services); (iv) the Complainant has been using the term “zion” to identify its company for more than a century, and the registered trademarks ZIONS and ZIONS BANK predate by many years the registration of the disputed domain name, being continually used at least for more than twenty years; (v) the website that was linked to the disputed domain name did not offer any information about the company providing the services it offered apart from the name “Zion Trust Group”, indicating an address that seems to be false or wrong and does not correspond to the WhoIs record of the disputed domain name; (vi) the log in option included in the website that was linked to the disputed domain name requested the client’s bank account number to long in; (vii) apparently, this website has been taken down, being the disputed domain name currently inactive resolving to a page with an Internet browser error message; and (viii) the Respondent has not offered any explanation of any rights or legitimate interests in the disputed domain name, deliberately choosing not to reply to the Complaint. The applicable standard of proof in UDRP cases is the “balance of probabilities” or “preponderance of the evidence”, and the Panel is prepared to draw certain inferences in light of the particular facts and circumstances of the case. See section 4.2, WIPO Overview 3.0. In the balance of probabilities, taking into consideration all cumulative circumstances of this case, the Panel considers that the disputed domain name was very likely registered and used, targeting the mark ZIONS with the intention of creating a likelihood of confusion as to the affiliation or association with the Complainant and its trademarks, its divisions’ group and/or to one of its divisions, trying to misleadingly attract Internet users to the Respondent’s website, and disrupting the Complainant’s business. It is further highly probable that the Respondent acted in bad faith with the intention to obtain sensible private information from its website visitors or through emails connected to the disputed domain name, in a phishing scam or other fraudulent activity, based on the association with the trademark ZIONS and the Complainant, presumably acting as one of the Complainant’s divisions. All of the above-mentioned leads the Panel to conclude that the disputed domain name was registered and is being used in bad faith. Accordingly, the Panel concludes that the Complainant has met its burden of establishing that the Respondent registered and is using the disputed domain name in bad faith under the third element 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 Reyes Campello Estebaranz
United States Trademark No. 2,531,436 ZIONSBANK.COM, word, registered on January 22, 2002 in class 36;
United States Trademark No. 2,380,325 ZIONS, word, registered on August 29, 2000 in class 36.
Sole Panelist
Date: May 5, 2020
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