Westmore · UDRP DecisionBw-bank.center
The Panel ordered transfer of <bw-bank.center>. It found the domain confusingly similar to the Complainant’s BW-BANK trademark, found no rights or legitimate interests on the Respondent’s part, and found registration and use in bad faith based on the totality of the circumstances, including passive holding, the mark’s distinctiveness and reputation, the phishing warning displayed to visitors, the implausibility of good-faith use, and the Panel’s findings concerning concealment of identity and presumed false contact details.
The timeline behind bw-bank.center
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The decision illustrates that passive holding can satisfy the bad-faith element where an exact copy of a distinctive banking trademark is combined with circumstances making good-faith use implausible. A browser-generated warning concerning possible phishing materially reinforced the Panel’s assessment even though no active website content was accessible.
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 Landesbank Baden-Württemberg (LBBW) v. David Amr Case No. D2021-2322 1. The Parties The Complainant is Landesbank Baden-Württemberg (LBBW), Germany, represented by Bird & Bird LLP, Germany. The Respondent is David Amr, France. 2. The Domain Name and Registrar The Disputed Domain Name <bw-bank.center> is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 16, 2021. On July 16, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 16, 2021, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 19, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 26, 2021. The Center appointed Peter Wild as the sole panelist in this matter on September 9, 2021. 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 a German mid-sized universal bank, conducting its retail customer business and most of its corporate customer business through its subsidiary BW-Bank. The Complainant is the owner of numerous trademark registrations that protect the trademark BW-BANK. German Trademark Registration no. DE 004988929, BW-BANK, registered on October 18, 2007, classes 35, 36, 38, 42; European Union Trademark Registration no. 001139450, BW-BANK, registered on August 3, 2018, classes 9, 14, 16, 35, 36, 38, 42; and United States Trademark Registration no. 5742979, BW-BANK, registered on May 7, 2019, classes 9, 14, 16, 35, 36, 38, 42. In addition to its BW-BANK trademarks the Complainant has also registered the domain name <lbbw.de> under which the main website for BW-Bank is available and where its banking and finance services are offered. Under the Disputed Domain Name, no active website can be found, but a warning page “deceptive site ahead”, i.e. warning the Internet user of possible phishing attacks under this website. 5. Parties’ Contentions A. Complainant According to the Complainant, it owns and uses the trademark BW-BANK. The Complainant submits that the Respondent has no rights or legitimate interests in this trademark or the Disputed Domain Name and there is indication that the Respondent is trying to use the Disputed Domain Name fraudulently. The Complainant also claims that the Respondent has registered the Disputed Domain Name using a proxy service with the purpose of attracting, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademarks, domain names and company name of the Complainant. The Complainant further claims that the Respondent’s bad faith is further supported by the fact that a phishing warning notice appears when entering the Disputed Domain Name, as well as by the Respondent using a privacy or proxy service to avoid being notified of a UDRP proceeding filed against it. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established its rights in the BW-BANK trademark. The Panel sees that the Disputed Domain Name reproduces the Complainant’s trademark in its entirety. The addition of a Top-Level Domain, in the present case “.center”, does not avoid a finding of confusing similarity under the Policy. The BW-BANK trademark is the only distinctive element in the Disputed Domain Name. The Panel concludes that the Disputed Domain Name is confusingly similar to the Complainant’s established trademark. The first element of the Policy has therefore been established. B. Rights or Legitimate Interests The Complainant is required to make out a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd. , WIPO Case No. D2003-0455 . Once such prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the Disputed Domain Name. If the Respondent fails to do so, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. There is no reason to believe that the Respondent’s name somehow corresponds with the Disputed Domain Name and the Respondent does not appear to have any trademark rights associated with the term “bw-bank”. See VUR Village Trading No. 1 Limited t/a Village Hotels v. Carolina Rodrigues, Fundacion Comercio Electronico , WIPO Case No. D2019-1596 . The Respondent is not identified in the Registrar’s WhoIs database as “bw-bank”. Previous UDRP panels have held that a respondent was not commonly known by a disputed domain name, if not even the WhoIs information was similar to the disputed domain name. There is no evidence in the case file showing that the Respondent may be commonly known as “bw-bank”. The Panel therefore finds under paragraph 4(a)(ii) of the Policy that the Respondent is not commonly known by the Disputed Domain Name. According to the Complainant, the Respondent is not affiliated with nor authorized by the Complainant in any way to use their trademark and there is no other plausible reason for registration of the Disputed Domain Name than to take advantage of the goodwill and reputation associated with the trademark BW-BANK. Furthermore, the Disputed Domain Name appears to point to a potentially fraudulent website, which clearly cannot be considered as a bona fide offering of goods or services. Based on these facts, the Panel holds that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. Therefore the Panel decides that the second condition of the Policy is met. C. Registered and Used in Bad Faith The Internet user does not get access to content at the website with the Disputed Domain Name, but is stopped by a warning that the Disputed Domain Name may lead to a phishing website. Technically, there is no use of the Disputed Domain Name, but that does not prevent a finding of bad faith in the circumstances of this case. Non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding. When looking at the totality of the circumstances of the subject case, and considering the factors that (i) the Complainant’s marks enjoy a fairly high degree of distinctiveness and reputation, (ii) it is not imaginable what evidence could be brought forward in support of the Respondent’s good-faith when registering the Disputed Domain Name, (iii) the Respondent’s concealing its identity and presumably uses false contact details, and (iv) the implausibility of any good faith use to which the Disputed Domain Name may be put, it is clear that the Respondent did act in bad faith when registering the Disputed Domain Name, see Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 . The Complainant’s bad faith claim is further supported by the fact that the warning notice defined above appears when entering the website at the Disputed Domain Name. In addition, it appears that the Respondent used a privacy or proxy service to avoid being notified of a UDRP proceeding filed against it; thus, it is reasonable to assume that the registration of the Disputed Domain Name was made in bad faith. See HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager , WIPO Case No. D2007-0062 . The Complainant’s registration and use of the relevant trademarks and domain name also predates the date at which the Respondent registered the Disputed Domain Name. Given the distinctiveness of the Complainant’s trademark, it is reasonable to infer that the Respondent has registered the Disputed Domain Name with full knowledge of the Complainant’s trademarks, constituting opportunistic bad faith. The Panel finds it hard to see any other explanation than that the Respondent knew of the Complainant’s well-known trademark. The Respondent has not shown that it owns any trademark or any similar marks to the term “bw-bank”. The Respondent’s lack of rights in the Disputed Domain Name at issue is further indication of bad faith in registering and using it. Where a domain name is so obviously connected to a particular product or service and the registrant is found to have “no connection” to that product or service, “opportunistic bad faith” is established. See LACER, S.A. v. Constanti Gomez Marzo , WIPO Case No. D2001-0177 . For these reasons, the Panel concludes that the Respondent has registered and is using the Disputed Domain Name in bad faith pursuant to paragraph 4(b)(iv) of the Policy. 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, <bw-bank.center> be transferred to the Complainant. Peter Wild Sole Panelist Date: September 23, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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