Westmore · UDRP DecisionBradescoprevidencia.com
The Panel ordered transfer of <bradescoprevidencia.com>. It found the domain confusingly similar to the Complainant’s BRADESCO trademark because it incorporated the mark in full and added the non-distinctive pension-related term “previdencia.” The unrebutted record established no rights or legitimate interests, and the Panel found registration and use in bad faith through intentional attraction of Internet users for commercial gain by creating confusion with the BRADESCO mark.
The timeline behind bradescoprevidencia.com
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 term associated with a complainant’s own services may increase rather than reduce confusing similarity. It also shows the significance of a coined, extensively registered mark, longstanding rights, and an unrebutted prima facie case where the panel finds commercial attraction through confusion.
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. Domain Administrator, Fundacion Private Whois Case No. D2014-1451 1. The Parties The Complainant is Banco Bradesco S/A of São Paulo, Brazil, represented by Pinheiro, Nunes, Arnaud & Scatamburlo S/C, Brazil. The Respondent is Domain Administrator, Fundacion Private Whois of Panama. 2. The Domain Name and Registrar The disputed domain name <bradescoprevidencia.com> is registered with Internet.bs Corp. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 22, 2014. On August 22, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 26, 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 September 3, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 23, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2014. The Center appointed Enrique Ochoa as the sole panelist in this matter on September 30, 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 is one of the leaders of private banking services in Brazil, and operates more than 25 million bank accounts and 45 million savings accounts. The Complainant has branches and affiliates all over Brazil, as well as in the United States of America, Argentina, Cayman Islands (Overseas Territory of the United Kingdom of Great Britain and Northern Ireland), Luxembourg, and Japan. The Complainant was first constituted under the denomination “Banco Brasileiro De Descontos” in 1943, and is currently established under the denomination Banco Bradesco S/A. The Complainant registered the Brazilian trademark BRADESCO (No. 007.007.170.424) on June 10, 1980, and the trademark has been successively renewed. The Complainant owns 333 other Brazilian trademark registrations incorporating BRADESCO, all of which are currently valid, and also owns other domain names that incorporate the trademark including <bradesco.com.br> and <bradesco.com>. The Complainant owns the BRADESCO well known trademark in 38 countries. The disputed domain name was registered on September 8, 2010. 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions: (i) The disputed domain name is confusingly similar to the BRADESCO trademark, to which the Complainant has prior and unencumbered rights. The disputed domain name wholly incorporates the Complainant's BRADESCO trademark, along with an additional term, “previdencia” 1 ; (ii) The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant is the registered proprietor of the BRADESCO mark in various countries and has used it continuously since 1980. The trademark BRADESCO has the elements of an invented word, and has acquired substantial goodwill as a source-identifier for the goods and services the Complainant offers and licenses. The Respondent holds no registration for any trademark registrations of the disputed domain name and has never received any authorization from the Complainant to make use of the BRADESCO mark; (iii) The Respondent registered and is using the disputed domain name in bad faith. The Respondent has no obvious use for the disputed domain name besides profit from squatting on it. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Panel notes and agrees with the analysis and assessment made by the panel in the earlier decision Banco Bradesco S/A v. Pablo Park, WIPO Case No. D2014-0675 . Therefore, the following paragraphs incorporate mutatis mutandis the wording of the decision cited above. A. Substantive Elements of the Policy Paragraph 15(a) of the Rules instructs the Panel to decide the Complaint on the grounds of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, under paragraph 14(b) of the Rules, it is established that: “If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.” In light of the above, the Panel may draw such inferences from the Respondent’s failure to comply with the Rules as the Panel considers appropriate (see paragraph 14(b) of the Rules); Talk City, Inc. v. Michael Robertson , WIPO Case No. D2000-0009 ). Under paragraph 4(a) of the Policy, the Complainant must prove each of the following: (i) The disputed domain name is identical or confusingly similar to the Complainant’s trademark or service mark; (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. B. Identical or Confusingly Similar The Complainant owns trademarks that either consist of or include the BRADESCO trademark in various countries, and the Panel finds that the disputed domain name is confusingly similar to the BRADESCO trademark. Internet users intending to find one of the many websites registered by the Complainant may be misled to believe that the Complainant is the registrant of the disputed domain name or otherwise associated therewith. The first part of the disputed domain name is identical to the Complainant’s distinctive trademark BRADESCO, and the remaining term, “previdencia”, is not a distinctive feature of the disputed domain name. The Complainant has a global reputation as a banking services provider, and the website is misleading since customers may believe that the same relates to the private pension plans of the Complainant. The addition of a generic Top-Level Domain (“gTLD”) such as “.com” is irrelevant in determining whether the disputed domain name is identical or confusingly similar to the Complainant’s trademark (see Universal Studios, Inc. v. G.A.B. Enterprises , WIPO Case No. D2000-0416 ). Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i). C. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires that the Complainant demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name. UDRP panels have held that once a complainant establishes a prima facie showing that none of the three legitimizing circumstances in paragraph 4(c) of the Policy applies, the burden of production on this factor shifts to the respondent to rebut the showing (see Ets Leobert, SARL v. Jeonggon Seo , WIPO Case No. D2009-0004 ; Universal City Studios, Inc. v. David Burns and Adam-12 Dot Com , WIPO Case No. D2001-0784 ; International Hospitality Management – IHM S.p.A. v. Enrico Callegari Ecostudio , WIPO Case No. D2002-0683 ). The Complainant asserts that the Respondent has no trademark registered that consists of or contains the term “Bradesco”, nor does it have any right on an unregistered basis. The Respondent has never obtained agreement, authorization, or license from the Complainant to use the BRADESCO trademark. “Bradesco” is not a generic, descriptive, or dictionary word, and it was coined by a combination of the Complainant’s original commercial name (Banco Brasileiro de Descontos). The Respondent’s activities do not relate to BRADESCO products. The Respondent does not use and has not made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and services. The Respondent has not submitted any response to the Complainant’s case, and has therefore failed to invoke any circumstance that could have demonstrated any rights or legitimate interests in the disputed domain name. D. Registered and Used in Bad Faith The Complainant contends that the Respondent registered and is using the disputed domain name in bad faith, in violation of paragraph 4(a)(iii) of the Policy. Paragraph 4(b) of the Policy provides four non-exclusive circumstances that suggest bad faith. Since the Respondent did not file a response to the Complaint, there is no evidence nor allegations that the Respondent makes a fair use of the disputed domain name. Given the global reputation of the Complainant and the wide use of the BRADESCO trademark, the Panel is of the opinion that the Respondent was aware or should have been aware of the Complainant’s mark and claims of rights thereto at the time of the registration of the disputed domain name. Any trademark check of the records of the patent and trademark offices of various jurisdictions would have made the Complainant’s registrations known to the Respondent. Based on the available record, the Panel is persuaded that the Respondent has used the disputed domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark, pursuant to the Policy, paragraph 4(b)(iv). Therefore, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. 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 <bradescoprevidencia.com> be transferred to the Complainant. Enrique Ochoa Sole Panelist Date: October 16, 2014 1 The term “previdencia” is the Portuguese word “previdência” misspelled, and “previdência” stands for “pension” in English, making reference to a website about Complainant’s private pension plans, as detailed in the Complaint.
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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