Westmore · UDRP DecisionAmegyus.com
The Panel ordered transfer of <amegyus.com>. It found the domain confusingly similar to Complainant’s registered AMEGY mark because it incorporated AMEGY and merely appended the geographic identifier “us” and the “.com” gTLD. Complainant established an unrebutted prima facie case that Respondent lacked rights or legitimate interests. The Panel also found registration and use in bad faith based on the allegations concerning disruption, exploitation of Complainant’s goodwill, commercial diversion, likely confusion, and use of a privacy service, taken together and unrebutted. The Panel expressly declined to give weight to unsupported speculation that the domain might be used for phishing, fraud, malware, competitive services, parking, or passive holding.
The timeline behind amegyus.com
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This decision illustrates both the strength and limits of an unrebutted UDRP record. Incorporating AMEGY in full and adding the geographic term “us” readily satisfied confusing similarity, while the absence of a Response left Complainant’s prima facie rights-or-legitimate-interests case unrebutted. For bad faith, the Panel accepted the combined, unrebutted allegations of disruption, goodwill exploitation, diversion, confusion, and privacy-service use, but expressly refused to treat hypothetical phishing, malware, parking, or passive holding as evidence without supporting facts.
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 Amegy Bank National Association (now known as ZB, N.A., dba Amegy Bank) v. ONLINE SUPPORT AMEGY/WHOIS AGENT, WHOIS PRIVACY PROTECTION SERVICE, INC. Case No. D2015-2368 1. The Parties Complainant is Amegy Bank National Association (now known as ZB, N.A., dba Amegy Bank) of Houston, Texas, United States of America, represented by Callister Nebeker & McCullough, United States of America. Respondent is ONLINE SUPPORT AMEGY of Panama City, Florida, United States of America / WHOIS AGENT, WHOIS PRIVACY PROTECTION SERVICE, INC. of Kirkland, Washington, United States of America. 2. The Domain Name and Registrar The disputed domain name <amegyus.com> is registered with eNom (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 29, 2015. On December 30, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 31, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 4, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on January 5, 2016. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceeding commenced on January 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 27, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 28, 2016. On January 12, 2016, an email communication was received from Complainant informing the Center that it was contacted by a Mr. Sexton in Panama City, Florida. Mr. Sexton stated that he had received the Written Notice in relation to this proceeding through courier however he was not the intended recipient of the Written Notice. The Center acknowledged receipt of this email communication on January 13, 2016 indicating it would be included in the case file for the Panel’s consideration in its decision. The Center appointed Bradley A. Slutsky as the sole panelist in this matter on February 2, 2016. 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 Complainant has service mark registrations for AMEGY, AMEGY BANK, and AMEGYBANK for banking services and other services. All of these registrations list a date of first use of January 26, 2005. Complainant’s parent corporation also registered the domain name <amegybank.com> on August 18, 2003. The disputed domain name was registered on December 10, 2015. 5. Parties’ Contentions A. Complainant Complainant asserts that the disputed domain name is identical to Complainant’s AMEGY service mark and confusingly similar to Complainant’s AMEGY BANK and AMEGYBANK service marks. Complainant asserts that Respondent is engaging in typosquatting to attract users who add “us” to “amegy” when trying to find Complainant’s site on the Internet. Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name because Complainant has been using the AMEGY mark since 2005, Respondent has not, to Complainant’s knowledge, made any use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, Respondent has not, to Complainant’s knowledge, been commonly known by the disputed domain name, Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, Respondent is not licensed to use Complainant’s marks, and Respondent is not using the disputed domain name as part of a bona fide offering of goods or services or for a legitimate noncommercial use. Complainant also asserts that Respondent registered and is using the disputed domain name in bad faith because the disputed domain name contains Complainant’s service mark, was registered for the purpose of disrupting Complainant’s business and taking advantage of Complainant’s goodwill, is diverting customers from Complainant’s website for commercial gain or malicious purposes, is confusing consumers as to Complainant’s affiliation with Respondent’s website, may divert consumers to Respondent’s website instead of to Complainant’s website, may be used for phishing or other fraudulent activities, could resolve to websites that may contain malware or competitive products and services, and was registered using a privacy protection service. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Pursuant to paragraph 15(a) of the Rules, a panel in UDRP proceedings “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”. Under paragraph 4(a) of the Policy, Complainant must prove the following: (i) the disputed domain name is 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 disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Under paragraph 4(a)(i) of the Policy, Complainant must show that the disputed domain name is “identical or confusingly similar to a trademark or service mark in which the complainant has rights”. Complainant’s trademark registrations attached to the Complaint demonstrate that Complainant has rights in the AMEGY mark. The disputed domain name consists of the AMEGY mark with the geographic identifier “us” appended to the end, and the “.com” generic Top-Level Domain (“gTLD”). The addition of a geographic suffix does not avoid confusing similarity. Dr. Ing. H.c. F. Porsche AG v. yangyong / Domain WhoIs Protection Services, WIPO Case No. D2012-1058 (“The letters ‘us’ are readily understood by a reasonable person to refer to the United States. The suffix is a clearly descriptive element and does not assist to distinguish the Disputed Domain Name from the Complainant’s trademark PORSCHE. Therefore, the Panel holds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark PORSCHE.”). The addition of the “.com” gTLD also does not detract from confusing similarity. WRc plc v. W&R Corp., WIPO Case No. D2007-1284 (“The addition of the generic top-level domain ‘.com’ is insufficient to distinguish the domain name from Complainant’s mark”). Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights, and that paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests Complainant also must demonstrate that Respondent has “no rights or legitimate interests in respect of the domain name”, paragraph 4(a)(ii) of the Policy. “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [Respondent’s] rights or legitimate interests to the domain name[s] for purposes of paragraph 4(a)(ii): (i) before any notice to [Respondent] of the dispute, [Respondent’s] use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) [Respondent] (as an individual, business, or other organization) ha[s] been commonly known by the domain name, even if [Respondent has] acquired no trademark or service mark rights; or (iii) [Respondent is] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” Policy, paragraph 4(c). There is no evidence that Respondent was making a bona fide use of the disputed domain name before receiving notice of this dispute, or that Respondent has been commonly known by <amegyus.com>. Rather, Complainant asserts that Respondent is not licensed or otherwise permitted to use Complainant’s AMEGY mark and that Respondent is not using the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial use. Complainant has made out a prima facie case of lack of rights or legitimate interests, which Respondent has not rebutted. See Amegy Bank National Association v. Damon Nelson - Manager, Quantec, LLC/Novo Point, LLC, WIPO Case No. D2015-0269 (finding the “no rights or legitimate interests” element satisfied based on the same Complainant’s similar allegations in that matter); LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2010-0138 (“It is clear that no license or authorization of any kind has been provided by Complainant to Respondents to use any of its trademarks or to apply for or use any domain name incorporating those marks. … Thus, it is clear that no bona fide or legitimate use of the domain names could be claimed by Respondents.”); Marriott International, Inc. v. Thomas, Burstein & Miller, WIPO Case No. D2000-0610 (“No evidence was presented that at any time had the Complainant ever assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the marks MARRIOTT REWARDS or MARRIOTT in any manner. Accordingly, the Panelist finds that the Respondent, prior to any notice of this dispute, had not used the domain name in connection with any type of bona fide offering of goods or services. Additionally, no evidence has been presented that the Respondent is commonly known by the domain name or has been making any legitimate noncommercial or fair use of the domain name without the intent for commercial gain to misleadingly divert consumers or to tarnish the mark at issue. The Panelist therefore concludes that the Respondent has no rights or legitimate interests in the domain name and that Element (ii) has been satisfied.”). Accordingly, the Panel finds that the present record supports a conclusion that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith Complainant also bears the burden of establishing that the “domain name has been registered and is being used in bad faith”. Policy, paragraph 4(a)(iii). As set forth in the Policy, paragraph 4(b): “[T]he following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that [Respondent has] registered or [Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to [C]omplainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent’s] documented out-of-pocket costs directly related to the domain name; or (ii) [Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent has] engaged in a pattern of such conduct; or (iii) [Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.” Complainant asserts that Respondent’s registration of a domain name that is confusingly similar to Complainant’s marks was done in order to disrupt Complainant’s business and to exploit the goodwill associated with Complainant’s marks in order to divert Complainant’s customers to Respondent’s website for commercial gain. Complainant asserts that such actions also create a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Complainant also notes that the disputed domain name was registered using a privacy protection service. Taken together, these allegations as a whole support a finding of bad faith – especially when Respondent has not rebutted any of the allegations. Amegy Bank National Association v. Domain Whois Protection Service, shangguoxiang, WIPO Case No. D2014-1516 (“Respondents, by choosing to register and use a domain name which is confusingly similar to Complainant’s trademark, intended to disrupt Complainant’s business and/or ride on the goodwill of Complainant’s trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondents, the choice of the disputed domain name and the conduct of Respondents is indicative of registration and use of the disputed domain name in bad faith.”); Amegy Bank National Association v. Contact Privacy Inc. / ICS INC., WIPO Case No. D2012-2018 . Complainant also states in the Complaint that: - “Respondent may also use [the disputed domain name] in connection with various phishing and fraudulent activities”; - “Although in some cases the use of a domain name that resolves to a parking or landing page may be permissible, the apparent lack of active use of a domain name does not prevent a finding of bad faith”; and - “The use of the Domain Name to resolve to websites that may contain malware, or could include competitive products and services of Complainant could tarnish the trademarks of Complainant, and otherwise constitutes bad faith registration and use.” These allegations are not helpful to Complainant here because Complainant does not allege or show that the disputed domain name has been used for phishing, fraud, malware, competitive products or services, a parking or landing page, or without any active use. Rather, in these allegations Complainant asserts that Respondent “may” use the disputed domain name for phishing or fraud, and that the disputed domain name “may” contain malware or “could” include competitive products and services. Similarly, Complainant’s statement about parking / landing pages amounts to a paraphrasing of the principles enunciated in Sections 2.6 and 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition , but Complainant does not allege any facts to which these principles should be applied. Nevertheless, for the reasons set forth above the Panel finds that the present record supports a conclusion that the disputed domain name has been registered and used in bad faith, and that paragraph 4(a)(iii) of the Policy is satisfied. 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 <amegyus.com> be transferred to Complainant. Bradley A. Slutsky Sole Panelist Date: February 16, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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