Westmore · UDRP DecisionSaudebradesco.info
The Panel ordered transfer of <saudebradesco.info>. It found the domain confusingly similar to the Complainant’s BRADESCO marks because it combined BRADESCO with “saude,” referring to the Portuguese word for health, a term associated with services offered by the Complainant. The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which went unrebutted. Bad faith was found because BRADESCO was a coined and notorious mark, the domain’s health-related wording indicated knowledge of the Complainant and its services, and the Panel concluded that the Respondent intentionally sought commercial gain through confusion.
The timeline behind saudebradesco.info
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The case illustrates how adding a descriptive term can increase rather than reduce confusion when that term corresponds to services associated with the trademark owner. It also shows the significance attributed to a coined, notorious mark when assessing likely knowledge and bad-faith targeting, particularly where the respondent offers no rebuttal.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Banco Bradesco S/A v. Donaldson Filho Case No. D2014-1372 1. The Parties The Complainant is Banco Bradesco S/A of Osasco, Sao Paulo, Brazil, represented by Pinheiro, Nunes, Arnaud & Scatamburlo S/C, Brazil. The Respondent is Donaldson Filho of Curitiba, Parana, Brazil. 2. The Domain Name and Registrar The disputed domain name <saudebradesco.info> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2014. On August 13, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 15, 2014, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 18, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 7, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 8, 2014. The Center appointed Andrea Dawson as the sole panelist in this matter on September 16, 2014. 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, Banco Bradesco S/A, is one of the leaders in the Brazilian private banking services, running more than 25 million bank accounts and more than 45 million savings accounts. The Complainant has throughout the entire Brazilian territory, more than eight-thousand four-hundred service points, four-thousand six-hundred branches, over three-thousand seven-hundred service posts, more than one-thousand four-hundred automated teller machines (ATMs). The Complainant has branches and affiliates all over Brazil and also in New York, United States of America, Buenos Aires, Argentina, Grand Cayman, Cayman Islands, Luxembourg, Luxembourg and Tokyo, Japan. The Complainant is the owner of the trademark BRADESCO in Brazil, registered on June 10, 1980, No. 007.170.424. The Brazilian Patents and Trademarks Office declared the trademark notorious. The Complainant is also the owner of several BRADESCO trademarks around the world comprising Argentina, Aruba, Barbados, Bolivia, Cayman Islands, Chile, China, Colombia, Costa Rica, Cuba, Curaçao, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Hong Kong (China), India, Indonesia, Israel, Jamaica, Japan, Mexico, Nicaragua, Panama, Paraguay, Peru, the Russian Federation, Singapore, South Africa, Trinidad and Tobago, Turkey, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America and Uruguay. In addition to the foregoing, the Complainant is also owner of the domain names <bradesco.com.br> and <bradesco.com>, among other domain names containing the BRADESCO mark. The disputed domain name <saudebradesco.info> was registered on March 21, 2014. 5. Parties’ Contentions A. Complainant The Complainant states that it is the owner of the trademark registration BRADESCO filed in Brazil on June 13, 1979, achieving registration on June 10, 1980, and numbered No. 007.170.424. In addition to this special protection to which the Complainant is entitled, it is also the owner, in Brazil, of other 333 trademarks registrations incorporating the expression BRADESCO, all of which are currently valid. The Complainant states that the disputed domain name reproduces the trademark BRADESCO and is confusingly similar to the domain names previously registered by the Complainant. The Complainant adds that the disputed domain name <saudebradesco.info> is composed by the term “saude” and the Complainant’s trademark BRADESCO. The term “saude” is the Portuguese word “saúde” misspelled, and “saúde” stands for “health” in English. This leads to the conclusion that the disputed domain name <saudebradesco.info> is confusingly similar to the Complainant’s trademark, making it possible for customers to believe that the disputed domain name is the real and current Complainant’s domain name. The Complainant indicates that there is no trademark registered, in the name of the Respondent, that consists of, or contains, the word “bradesco”, or that it has any right on an unregistered basis in such a mark. In addition, the Complainant has not entered in any agreement, authorization or license with the Respondent with respect to the use of the word “bradesco”. The Complainant adds that there is no reference to the Respondent’s activities or services on its website, therefore the only plausible explanation for the Respondent’s selection of the disputed domain name is to exploit in an unauthorized fashion the reputation and goodwill of the Complainant and its names and marks. The Complainant further states that the bad faith of the Respondent can be deduced also by the fact that the Respondent has used the notorious mark BRADESCO as the major component of the disputed domain name, in circumstances in which the Respondent has no rights or legitimate interests in the mark. The Complainant also adds that the trademark BRADESCO is so widely used and known by the public that it would be almost impossible for someone to claim having registered said mark as a domain name, had it not been in absolute bad faith. The Complainant finally states that it has established and proven that the three requirements of paragraph 4(a)(i)(ii)(iii) of the Policy have been met in the present case, i.e., that the disputed domain name <saudebradesco.info> is confusingly similar to Complainant’s BRADESCO trademark, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, that is the subject of the Complaint, and that the registration and use of the disputed domain name have been made by the Respondent in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy stipulates that the Complainant must prove the following three elements in order to be successful in its action: (i) the disputed 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 disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has been able to demonstrate that it has rights in numerous trademarks BRADESCO. The disputed domain name is the term “saude” plus the trademark BRADESCO. The terms “saude” refers to “saúde”, the Portuguese word for health. This generic term can be viewed as being associated with the Complainant. Consequently, the disputed domain name, in view of the Complainants’ notorious registered marks, and the fact that the Complainant provides health-related information, products and services, can be confused as being related to the Complainant or its trademark BRADESCO. For all the above-cited reasons, the Panel concludes that disputed domain name is identical and confusingly similar to the Complainant’s trademark and therefore the condition of paragraph 4(a)(i) of the Policy is fulfilled. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in the disputed domain name. However, many prior UDRP panels have established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to demonstrate that it does have rights or legitimate interests in the disputed domain name. The Panel agrees that it may be sufficient for the Complainant to only make out a prima facie case and finds that it has done so in the present proceeding. The Panel accepts the arguments of the Complainant that the Respondent has not been authorized by the Complainant to use its trademark, or to seek registration of any domain name incorporating said mark and that the Respondent has no prior rights or legitimate interests in the disputed domain name. Furthermore, the Panel finds that the Respondent is neither commonly known by the name “bradesco” nor in any way affiliated with Complainant, nor authorized or licensed in any other way to use the BRADESCO trademark. Consequently, the Panel finds that the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Under paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy sets out certain circumstances which, in particular but without limitation, if found by the Panel to be present, shall be evidence of both registration and use of the disputed domain name in bad faith. The Panel finds that the Complainant has submitted evidence, unchallenged by the Respondent, that the Respondent has registered the disputed domain name with the knowledge of the Complainant’s rights in the Complainant’s trademarks and that the Respondent’s bad faith is evidenced by several circumstances indicating that the Respondent must have been aware of the Complainant’s trademarks at the time of the registration of the disputed domain name. Firstly, “bradesco” is not a common term in any language. It has no official meaning in any language, to the knowledge of this Panel. Therefore, one can assume that it is a coined word. Consequently, as mentioned by the Complainant, it is unlikely that Respondent was unaware of Complainant when the disputed domain name was registered. Furthermore the Panel finds that it is reasonable to conclude that Respondent had perfect knowledge of the Complainant’s existence and the services it provided, since it can not be a mere coincidence that not only does the disputed domain name coincide with a registered trademark of the Complainant, but it also includes a generic term which refers to the same services as some also offered by the Complainant. Consequently, it is fair to conclude that the Respondent must have had the Complainant’s trademark in mind when registering the disputed domain name, especially taking into consideration that Bradesco provides health related services. In view of the above, it is clear to the Panel that the Respondent intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of its website. For the above-cited reasons, the Panel finds that the disputed domain name was registered and is being used in bad faith; therefore, the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case. 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 <saudebradesco.info> be transferred to the Complainant. Andrea Dawson Sole Panelist Date: September 30, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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