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and Mediation Center
Banca Intesa S.p.A v. David Radziewicz
Case No. D2006-0919
1. The Parties
The Complainant is Banca Intesa S.p.A, Milan, Italy, represented by Studio Legale Perani, Italy.
The Respondent is David Radziewicz, Eastpoint, Michigan, United States of America.
2. The Domain Name and Registrar
The disputed domain name <intesaonline.net> is registered with Melbourne
IT trading as Internet Names Worldwide.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 19, 2006. On July 20, 2006, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On July 21, 2006, Melbourne IT trading as Internet Names Worldwide transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 July 25, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 14, 2006. The Response was filed with the Center on August 14, 2006.
The Center appointed Knud Wallberg as the sole panelist
in this matter on August 23, 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,
4. Factual Background
The Complainant, Banca Intesa is an Italian banking group that was incorporated in 1998, as a result of a merger between Cariplo and Banco Ambrosiano Veneto. In 2001, Banca Commerciale Italiana merged with Banca Intesa and the new entity was named “Intesabci”. On December 17, 2002, the Complainant was renamed “Banca Intesa”.
The Complainant has nearly 58,000 employees, 3,879 branches, city offices in Italy and around the world and almost 13 million clients (of which approximately 6.3 million are individuals). The Complainant is thus a major Italian banking group and a key player in the European banking sector.
Complainant is the owner of several trademark registrations
and applications for the words INTESA and INTESA ONLINE inter alia in
Italy, the European Union and the United States of America.
5. Parties’ Contentions
The domain name is identical to the trademarks in which the Complainant has rights
The domain name <intesaonline.net> is identical to the trademark INTESAONLINE and very similar to the trademark INTESA. Moreover, the Respondent’s domain name is very similar to the address for Banca Intesa’s official web site at “www.bancaintesa.it“, which is connected also to the Complainant’s domain name <intesaonline.it>, and is almost identical to the Complainant’s domain name <intesaonline.net>.
The Respondent has no rights or legitimate interests in respect of the domain name;
The Complainant had contacted the Respondent, in order to obtain a voluntary transfer of the contested domain name. On that occasion, the Respondent explained that he has nothing to do with such domain name and that he has been victim of an identity theft, i.e. that someone else has wrongfully created the domain name, using the Respondent’s name without authorization
Consequently, it is clear that the Respondent has no rights or legitimate interests on the domain name.
Further, the Respondent’s domain name does not correspond to a registered trademark. The Complainant has a worldwide trademark watching service on the word “intesa” and no trademarks covering the words “intesa” or “intesaonline”, in the name of the Respondent, have been detected.
In addition, the domain name at stake does not correspond to the business name of the Respondent since he is not commonly known as “intesaonline” or “intesa”.
The domain name was registered and is being used in bad faith
The Complainant contends that the aforesaid identity theft represents itself a clear evidence that the domain name <intesaonline.net> was registered and is being used in bad faith. In fact, the actual owner of the domain name, by using Mr. Radziewicz’s name, has tried to hide its true identity.
Anyway, there are present circumstances indicating that, by using the domain name, the actual owner has intentionally attempted to attract, for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the web site.
The domain name <intesaonline.net> is not currently connected to any web sites. Nonetheless, several UDRP decisions stated that, in particular circumstances, even the “passive holding” of a domain name may represent a registration and use in bad faith as required by par. 4(a) (iii) of the Policy. The circumstances recognized in these cases are also present in this case, namely:
- the Complainant’s trademark has a strong reputation and is widely known;
- the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name;
- the Respondent has taken active steps to conceal its true identity, by operating under a name that is not a registered business name;and
- the Respondent has actively provided, and failed to correct, false contact details, in breach of its registration agreement.
Taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law.
The risk of a wrongful use of the domain name under consideration is high in the present case, since Complainant, during the last year, has been targeted by some cases of phishing, i.e. the practice of attracting the customers of a bank to a web page which imitates the real page of the bank, with a view to having customers disclose confidential information like a credit card or bank account number, for the purpose of unlawfully charging such bank accounts or withdrawing money out of them.
It cannot be excluded that the actual owner registered the disputed domain name with the purpose of “phishing” to induce and divert the Complainant’s legitimate customers to the website in order to steal their money.
In all events there can be no other possible legitimate use of <intesaonline.net>. The sole further aim of the owner of the domain name under consideration might be to resell the same to the Complainant, which represents, in any case, an evidence of the registration and use in bad faith, according to paragraph 4(b)(i) of the Policy.
Respondent has informed the Panel that he is an individual who has been the subject of “identity theft” i.e. that someone unrelated to Respondent has used his name with out his authorization to register the contested domain name.
Respondent states that he has no legitimate interest in the name “intesa”.
He further states that he has no knowledge of Complainant or Complainants rights
to the name “intesa”.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide a Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with Paragraph 4(a) of the Policy, Complainant must prove that each of the three following elements are satisfied:
(i) The domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) The domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The domain name <intesaonline.net> contains Complainant’s distinctive trademark INTESA in full. In addition, the contested domain name is identical to one of complainants registered trademarks INTESA ONLINE. The Panel notes that the inclusion of the gTLD denomination “.info” shall be disregarded for the purpose of these proceedings.
The Panel finds that the disputed domain name is identical to a mark in which the Complainant has rights, and that the requirements underparagraph 4(a)(i) of the Policy are therefore fulfilled.
B. Rights or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the domain names. Respondent has in his response stated that he has no legitimate interests in the disputed domain name. Nor is there material before the Panel demonstrating the applicability of any of the three sets of circumstances under paragraph 4(c) of the Policy.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that accordingly the requirements under paragraph 4(a)(ii) of the Policy are fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy further provides that Complainant must prove
registration and use of the domain name in bad faith. Paragraph 4(b)
of the Policy sets out, by way of example, the kind of evidence that may be
Complainant’s trademark is registered inter alia in the home country of the Respondent, the United States of America before Respondent registered the contested domain name. Since INTESA (and INTESA ONLINE) are distinctive trademarks with no apparent descriptive meaning it is unlikely that the contested domain name has been registered without prior knowledge of Complainant and Complainants rights. Respondent has not provided any information to rebut this presumption. The Panel is therefore satisfied that the domain name has been registered in bad faith.
The contested domain name is presently not used actively in the sense that
it is not used for an active website. However, as first stated in WIPO
Case No. D2000-0003 Telstra v. Nuclear Marshmallows and repeated
in many subsequent decisions under the UDRP:
“the concept of a domain name “being used in bad faith” is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith”.
Before these proceedings were initiated, the Respondent replied to the Complainant’s letter in which the Complainant offered an amicable resolution of the dispute, stating that he, the Respondent, had been a victim of identity theft i.e. that someone had misused his name and address and credit card details. The Respondent has repeated these claims in his Response in the case.
The Respondent has however not substantiated his claims of “identity theft”, so it is not possible for the Panel to asses whether they are true or not. The Panel does however note that the Respondent despite his claims has not been willing to transfer the domain name voluntarily and that he in the Response requests the Panel to deny the remedies requested by the Complainant, i.e. to deny the transfer of the domain name. Given these facts and circumstances and in the light of the fact that Respondent does not have any legitimate rights or interests in the contested domain name the Panel finds that the domain name is also used in bad faith.
Considering all the facts and evidence, the Panel finds that the requirements
of paragraph 4(a)(iii) of the Policy are met.
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 <intesaonline.net> be transferred to the Complainant.
Dated: September 4, 2006