Westmore · UDRP DecisionAbsa.info
The Panel ordered transfer of <absa.info> to ABSA Group Limited. It found the domain confusingly similar to the Complainant’s ABSA trademark, found no evidence that the Respondent had rights or legitimate interests, and concluded that the domain had been registered and used in bad faith. Although the domain was inactive, the Panel found that passive holding did not prevent a bad-faith finding, particularly given the Complainant’s prior trademark rights, the Panel’s finding that the Respondent knew of those rights, and the Respondent’s failure to answer the Complaint.
The timeline behind absa.info
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind absa.info — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that an inactive domain exactly reproducing a pre-existing trademark may satisfy the UDRP where the overall circumstances support respondent knowledge, no plausible right or legitimate interest is evidenced, and the respondent does not rebut the complaint. The case also shows that default alone was not stated as automatically establishing the claim; the Panel addressed each element and relied on the mark, chronology, lack of authorization, inactivity, and its inference of knowledge and 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 ABSA Group Limited v. Alfio Claudio Grasso, G.A.C. - Informatica Case No. D2019-0937 1. The Parties The Complainant is ABSA Group Limited, South Africa, represented by Moore Attorneys Incorporated, South Africa. The Respondent is Alfio Claudio Grasso, G.A.C. - Informatica, Italy. 2. The Domain Name and Registrar The Disputed Domain Name <absa.info> is registered with Name.com, Inc. (Name.com LLC) (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2019. On April 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On the same date, 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 the Complainant on April 29, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 9, 2019. The Center verified that the Complaint together with the amended 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 the Respondent of the Complaint, and the proceedings commenced on May 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 6, 2019. The Center appointed Pablo A. Palazzi as the sole panelist in this matter on June 18, 2019. 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 an African-based financial services provider, which offers personal and business banking, credit cards, corporate and investment banking, wealth and investment management and insurance. The Complainant is the owner of ABSA trademark in various jurisdictions, including inter alia , the following: - ABSA (& Design) African trademark, Registration No. 1991/01263, registered on January 5, 1994; - ABSA (& Design) African trademark, Registration No. 1991/01264, registered on December 30, 1993; and - ABSA Kenya trademark, Registration No. 1094087, registered on August 3, 2017. Moreover, the Complainant is the owner of the following domain names: - <absa.co.za>, registered on January 1, 1995, - <absabank.net>, registered on July 30, 2004, - <absabank.org>, registered on July 30, 2004, and - <absabank.mobi>, registered on March 16, 2009. The Disputed Domain Name <absa.info> was registered on January 31, 2012. The Disputed Domain Name is currently inactive. 5. Parties’ Contentions A. Complainant The Complainant’s contentions can be summarized as follows: Identical or confusingly similar The Complainant states that the Disputed Domain Name is an exact replication of the ABSA trademark, as it wholly incorporates the Complainant’s trademark. The addition of the Top-Level Domain (“TLD”) “.info” will most likely increase the likelihood of confusion between the Complainant’s trademark and the Disputed Domain Name. Moreover, this addition does not distinguish the Disputed Domain Name from the Complainant’s trademark. Rights or legitimate interests The Complainant alleges that the Respondent has no rights or legitimate interests in the Disputed Domain Name. Moreover, the Disputed Domain Name is not connected with a bona fide offering of goods and services. The Complainant further states that the Respondent is not commonly known by the Disputed Domain Name. Finally, the Complainant has never provided the Respondent with permission to register the Disputed Domain Name and/or to use its ABSA trademark. Moreover, there is no business relationship between the Complainant and the Respondent. Registration and use in bad faith The Complainant alleges that the Respondent registered the Disputed Domain Name in order to confuse Internet users. The Complainant registered the domain name <absa.com.za> on December 31, 1994, eighteen (18) years before the Respondent registered the Disputed Domain Name. The Complainant states that the registration of the Disputed Domain Name will prevent the Complainant from registering an “.info” domain name. Consequently, the Complaint alleges that the Respondent has registered the Disputed Domain Name 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 lists the three elements which the Complainant must satisfy with respect to the Disputed Domain Name at issue in this case: (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 trademark rights over the term ABSA, as evidenced by the trademark registrations listed in the Complaint. Based on the evidence submitted, the Panel finds that the Disputed Domain Name <absa.info> is confusingly similar to the Complaint’s trademark ABSA. The Disputed Domain Name wholly incorporates the Complainant’s trademark as its only distinctive element. Furthermore, the Disputed Domain Name contains the Complainant’s ABSA trademark in its entirety; the addition of the TLD “.info” does not change this finding, since the TLD is generally disregarded in such an assessment of confusingly similarity. Therefore, the Panel finds that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name: (i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are 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. There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the trademark in the Disputed Domain Name. In addition, the Complainant has previously sent a demand letter to the Respondent which was never replied. The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name. Moreover, it had the opportunity to demonstrate its rights or legitimate interests, but it chose not to reply to the Complainant. As such the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Disputed Domain Name <absa.info> is currently inactive; the Respondent was well aware of the Complainant’s prior rights and business, since the Disputed Domain Name was registered on January 31, 2012, while the Complainant had the registration of one of its trademarks since 1993. Thus, it is very unlikely that the Respondent could have been unaware of the Complainant’s trademark and business when it registered the Disputed Domain Name. The Respondent has not denied these assertions because of its default. The Panel is of the view that the Respondent knew of the Complainant’s trademark and prior rights. Moreover, the fact that the Disputed Domain Name is currently inactive does not prevent a finding of bad faith use and does not change the Panel’s views in this respect. The Panel infers that the Respondent is using the Disputed Domain Name to intentionally attempt to attract Internet users to its website creating a likelihood of confusion with the ABSA trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website, and in doing so is disrupting the business of the Complainant. Therefore, taking all circumstances into account and for all above reasons, the Panel concludes that there is bad faith in the registration and use of the Disputed Domain Name. The third element of paragraph 4(a) of the Policy is, therefore, 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 <absa.info> be transferred to the Complainant. Pablo A. Palazzi Sole Panelist Date: July 1, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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