Bankofamericaforeclosures.com

The timeline behind bankofamericaforeclosures.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION Bank of America Corporation v. Todd Beitler Claim Number: FA0306000161463 PARTIES Complainant is Bank of America Corporation, Charlotte, NC (“Complainant”) represented by Larry C. Jones of Alston & Bird, LLP. Respondent is Todd Beitler, Boca Raton, FL (“Respondent”) represented by Andrew DS Lothian of Demys Limited. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <bankofamericaforeclosures.com> registered with Go Daddy Software, Inc. PANEL The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding. P. Jay Hines, Hon. Carolyn Marks Johnson, and David E. Sorkin as Panelists. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 3, 2003; the Forum received a hard copy of the Complaint on June 5, 2003. On June 4, 2003, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <bankofamericaforeclosures.com> is registered with Go Daddy Software, Inc. and that the Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On June 9, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 30, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@bankofamericaforeclosures.com by e-mail. A timely Response was received and determined to be complete on June 30, 2003. Additional Submissions were received from Complainant and Respondent on July 7, 2003, and July 8, 2003, respectively, in accordance with the Forum’s Supplemental Rule 7. On July 10, 2003, pursuant to Respondent’s request to have the dispute decided by a three-member Panel, the Forum appointed P. Jay Hines, Hon. Carolyn Marks Johnson, and David E. Sorkin as Panelists. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant Complainant contends that the disputed domain name <bankofamericaforeclosures.com> is confusingly similar to its BANK OF AMERICA service mark; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that Respondent registered and is using the disputed domain name in bad faith. B. Respondent Respondent contends that the manner in which he uses the disputed domain name does not render it confusingly similar to Complainant’s mark. Respondent further contends that he has rights or legitimate interests based upon his use of the disputed domain name to direct visitors to ForeclosureNet.net, a web site that offers data on real estate foreclosures; and that his intent to use the domain name for this purpose precludes a finding of bad faith. C. Additional Submissions Each of the parties has submitted an Additional Submission that primarily responds to arguments made by the other. The Panel has reviewed these Additional Submissions, and a majority of the Panel is of the view that it ought to consider them, although the Panel unanimously agrees that they contain no information that affects the outcome of the case. FINDINGS The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark, that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and has been used in bad faith. The Panel finds that Complainant has not used the Policy in bad faith to attempt to deprive Respondent of the domain name. DISCUSSION Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar A domain name that appends a trademark to a common term that does not obviously disassociate the domain name from the mark normally will be deemed confusingly similar to the mark. While “foreclosures” may not be strictly within the classes of services offered by Complainant, the concept is sufficiently closely related to Complainant’s business to create a likelihood of confusion. The Panel finds that the disputed domain name is confusingly similar to Complainant’s BANK OF AMERICA service mark. Rights or Legitimate Interests Respondent claims that he uses the disputed domain name to direct visitors to ForeclosureNet.net, a web site operated by his company that offers data on real estate foreclosures. He describes the data offered on this site as “qualified” by lender, although he does not explain precisely what this means, and it was not readily apparent to the Panel based upon a cursory review of the site. In any event, it appears that the site offers data on foreclosures from a variety of lenders. Respondent describes the site’s database as containing “a large inventory of Bank of America foreclosed property records,” but makes no claim that the site specializes in such data. He accounts for this “large inventory” as merely reflecting Complainant’s market share in consumer banking. While a bona fide nominative fair use of a trademark in a domain name may well give rise to rights or legitimate interests, the Panel is unpersuaded that Respondent’s use of the domain name in this case qualifies under that rule. Even if the Panel accepts Respondent’s claim that some potential customers are apt to search for foreclosure data by lender, Respondent appears to be using the disputed domain name, and therefore Complainant’s mark, to divert customers to a much broader offering, and one in which the presence of data pertaining to Complainant is merely incidental. Cf. Ty Inc. v. Perryman, 306 F.3d 509, 514 (7th Cir. 2002) (holding that defendant was properly enjoined from using BEANIES mark in connection with products other than genuine Beanie Babies), cert. denied, 123 S. Ct. 1750 (2003). This conclusion is reinforced by the fact that the ForeclosureNet.net site itself does not appear to use Complainant’s mark at all, except as a data field within records. The Panel rejects Respondent’s claim of bona fide use, and accordingly finds that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. Registration and Use in Bad Faith Respondent registered and is using the disputed domain name to divert Internet users to his company’s commercial web site, which offers information on real estate foreclosures. On balance it appears likely to the Panel that Respondent’s use of Complainant’s mark in a domain name that redirects to this site will confuse many Internet users as to its source, sponsorship, affiliation, or endorsement, a basis for finding bad faith under paragraph 4(b)(iv) of the Policy. The Panel finds that the disputed domain name has been registered and is being used in bad faith. Reverse Domain Name Hijacking Having found that Complainant has proved all three elements required under the ICANN Policy, the Panel concludes that the Complaint was not brought in bad faith. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <bankofamericaforeclosures.com> domain name be TRANSFERRED from Respondent to Complainant. P. Jay Hines, Presiding Panelist Dated: July 24, 2003 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.