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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Australia and New Zealand Banking Group Limited v. Anz Gropus Online

Case No. D2006-0097

 

1. The Parties

The Complainant is Australia and New Zealand Banking Group Limited, Melbourne, Victoria, Australia, represented by an internal representative.

The Respondent is Anz Gropus Online, Portland, Oregon, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <anzgrouponline.com> is registered with Tucows Inc. (“Tucows”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 23, 2006. On January 24, 2006, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On January 24, 2006, Tucows transmitted by email to the Center its verification response. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 6, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 26, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 28, 2006.

The Center appointed Francine Tan as the sole panelist in this matter on March 15, 2006. 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 March 15, 2006, the Center notified the Panel that when reviewing the file for transmission to the Panel, it noticed that inadvertently, neither the e-mail notification of the Complaint nor the hard copy of the Complaint was sent to the Respondent’s technical contact. The Panel notes that the Notification of the Complaint and the Complaint itself forwarded to the Respondent by courier were returned to the Center but the email notification to the Respondent’s email address seems to have gone through. In the exercise of the discretion available under paragraph 10 of the Rules, having taken into account the considerations set out in paragraph 10(b) and (c), the Panel issued Procedural Order No. 1 on March 21, 2006, directing that re-notification of the Complaint be effected forthwith by the Center so as to include the technical contact, and that the Respondent be given seven (7) days from the date of re-notification, or until March 28, 2006, to file his Response.

Re-notification of the Complaint was issued by the Center on March 21, 2006. On March 26, 2006, the Center received an email communication from the Respondent’s technical contact, Blue Domino Inc. Blue Domino Inc., confirmed receipt of the Administrative Panel Procedural Order No. 1 and attached email copies of their Deletion Report and customer records pertaining to their “former customer”, the Respondent. The records indicate that Blue Domino Inc. had, on December 8, 2005, terminated their services.

The Respondent did not submit any response pursuant to the Panel Procedural Order No. 1. Accordingly, the Center notified the Respondent’s default on March 29, 2006.

 

4. Factual Background

The Complaint is based on trademarks registered in Australia in respect of Class 36 services, namely in relation to banking and financial services. The trademark registrations date from as early as 1979, and include the following marks: “ANZ BANK” (both in a stylized and non-stylized form), “ANZ BANKING GROUP”, “ANZ” (stylized) and “ANZ.COM”. In addition, the Complainant has trademark registrations in Canada and the United States for “ANZ BANK” and “ANZ”. Apart from these, the Complainant claims to have trademark registrations that correspond with the aforesaid marks in other jurisdictions including the United Kingdom, the European Union, Hong Kong, SAR of China and New Zealand.

The Complainant is one of Australia’s largest and well-known banking institutions, with a long history dating back to over 150 years ago. The name “ANZ Bank” was allegedly first adopted by one of the Complainant’s predecessors in title in 1951. The current corporate entity of the Complainant was formed in 1970. The abbreviated form of its full name, “ANZ Banking Group”, has been used continuously by the Complainant since then and significant reputation and goodwill in its name has been generated over the many years of trading in Australia and other countries around the world. The Complainant is commonly referred to by the acronym “ANZ”. Another abbreviation, “ANZ Group”, is also used from time to time and reputation and goodwill exists therein. The Complainant has operated its website at <anz.com> since 1996, through which it commenced offering online-based banking services in 1999.

 

5. Parties’ Contentions

A. Complainant

(1) The Complainant contends that the domain name <anzgrouponline.com> is identical to, or confusingly similar with, the Complainant’s registered trade marks, and also the common law names, “ANZ” and “ANZ Group”, in which the Complainant enjoys significant reputation. The addition of the word “online” to the acronym “ANZ”, or the amendment of the name “ANZ Group” to “ANZ Group Online” leads to a domain name that is confusingly similar to the registered trade marks or common law names in which the Complainant has significant reputation.

(2) The Respondent has no rights or legitimate interests in the domain name for the following reasons:

(a) The Respondent failed to respond to a letter of demand dated October 27, 2005, which was sent by the Complainant. The failure to respond creates a presumption that the Respondent has no rights or legitimate interest in the domain name.

(b) Given the composition of the domain name and the Complainant’s reputation worldwide in the names “ANZ Bank”, “ANZ” and “ANZ Group”, it can be inferred that the Respondent has no rights or legitimate interest in the domain name.

(c) There is no evidence of the Respondent’s legitimate use, or demonstrations of any preparation to legitimately use, the name “ANZ” or “ANZ Group” (or any similar name) at the time of the filing of the Complaint.

3. The registration and use of the domain name has been made in bad faith and this is evidenced by the following:

(a) The Respondent’s failure to respond to the Complainant’s letter of demand dated October 27, 2005.

(b) The disputed domain name was actively used and resolved to a home page of a website until around October 28, 2005, when the website was suspended by the web services hosting provider, Blue Domino Inc. The suspension took place following a letter sent by the Complainant to Blue Domino Inc. on October 27, 2005. The extracts of the said website annexed to the Complaint showё inter alia, the Respondent’s claim to be the “ANZ Banking group”, an “Internet banking service provider”. The services offered included “ANZ Loans”. One of the extracts also reflects a statement that the “ANZ Online Bank is a division of ANZ Groups, Australia, New Zealand, United Kingdom”.

The use of the domain name in this manner indicates that the Respondent is aware of the Complainant.

(c) The Respondent’s use of the entire phrase “ANZ Group Online” in the domain name suggests that the Respondent is aware of the Complainant and of its website at <anz.com>. The Respondent’s constructive knowledge of the Complainant can be inferred from the Complainant’s numerous trademark registrations worldwide, including those in Australia and the United States, and also in Canada (where the Registrar is located). The trade marks were registered many years before the domain name registration.

(d) The use of the domain name has been intentionally used to attempt to attract for financial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service offered. The Respondent appears to be involved in “phishing” and other Internet-based financial scams. Annexed to the Complaint was a copy of an email received by one of the Complainant’s staff members. The email indicates that the use of the domain name <anzgrouponline.com> is connected with “the desk of the Foreign Operation Manager ANZ Banking Group, Minerva House, Montague Close, London”. The address is that of the Complainant’s operations in the United Kingdom. The email was not authorized by the Complainant nor published by them.

(e) The fact that the Respondent has no rights or legitimate interests in the domain name is in itself indicative that the domain name was registered and is being used in bad faith.

(f) The Respondent has registered the domain name to prevent the Complainant from using its trademark and/or names in a corresponding domain name. This has the effect of disrupting the Complainant’s legitimate business activities.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Notwithstanding the Respondent’s default in not having filed a Response, the Complainant is obliged pursuant to paragraph 4(a) of the Policy to prove that each of the following three elements is satisfied:

(1) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Under Paragraph 5(e) of the Rules, if the Respondent does not submit a Response and in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.

A. Identical or Confusingly Similar

The Panel is of the view that the first element has been satisfied. The domain name is confusingly similar to the marks of the Complainant in which it has rights. The gTLD suffix “.com” forming part of the domain name has no relevant distinguishing function. Further, the Panel considers that the additional term in the domain name, “online”, to be of no consequence to the finding of confusing similarity. Such domain names involving the addition of a generic term have been consistently held to be confusingly similar to their related trade marks. (See e.g. Harrods Limited v. Peter Pierre, WIPO Case No. D2001-0456; Google, Inc. v. Xtraplus Corp., WIPO Case No, D2001-0125; Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627.) In the case of Scholastic Inc. v. 366 Publications, the term “online” was added to the word “Scholastic” (the complainant’s trademark) in the domain name. The panel in that case held that “the addition of the generic term ‘online’ … is not a distinguishing feature. In fact, in this case it seems to increase the likelihood of confusion because it is an apt term for [the] Complainant’s online business”. The Panel considers that the same is equally true in this instance, as the Complainant has operated an online-based banking service since 1999.

B. Rights or Legitimate Interests

The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in respect of the domain name. The Complainant has established that it has rights in the marks “ANZ”, “ANZ BANKING GROUP, “ANZ.COM” and “ANZ GROUP”. The evidence submitted by the Complainant has also been sufficient to show that consumers visiting the Respondent’s website would very likely have been confused into believing that the site was endorsed or sponsored by or otherwise affiliated with the Complainant, especially since the services offered were identical to those offered by the Complainant. In fact, the Panel would draw the inference from the available evidence that the domain name was chosen by the Respondent for that very purpose.

Having established a prima facie case under the second limb to paragraph 4(a) of the Policy, the onus is then on the Respondent to dispute the Complainant’s allegation by demonstrating its rights to, and legitimate interests in, the domain name. (See Document Technologies, Inc. v. International Electronic Communications Inc. WIPO Case No. D2000-0270; Universal City Studios, Inc. v. G.A.B. Enterprises, WIPO Case No. D2000-0416; Drexel University v. David Brouda, WIPO Case No. D2001-0067.) Paragraph 4(c) of the Policy offers three examples by which the Respondent can demonstrate this. However, in not responding to the Complaint, the Panel is unable to make a finding other than that the Respondent has no rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

The list of circumstances under paragraph 4(b) of the Policy which would constitute evidence of bad faith registration and use is as follows:

(i)  registration for the primary purposes of selling, renting or otherwise transferring the domain name to the complainant who is the owner of the trade mark or to a competitor of the complainant, for valuable consideration in excess of out-of-pocket costs directly related to the domain name;

(ii)  registration for the purpose of preventing the trademark owner from having its trademark as a domain name (provided there is a pattern of such conduct);

(iii)  registration primarily for the purpose of disrupting the business of a competitor; or

(iv)  an intentional attempt to attract, for commercial gain, Internet users to the website or other online location by creating likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or other online location.

On a preponderance of the evidence, the Panel holds that the Complainant has established the Respondent’s registration and use in bad faith under paragraph 4(b)(iv) of the Policy. In view of its finding, the Panel does not find it necessary to address the Complainant’s further allegations of the Respondent’s bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <anzgrouponline.com> be transferred to the Complainant.


Francine Tan
Sole Panelist

Dated: April 3, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0097.html

 

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