Nwestmisteronline.com

The timeline behind nwestmisteronline.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.

NATIONAL ARBITRATION FORUM DECISION National Westminster Bank plc v. WhoisGuard c/o WhoisGuard Protected Claim Number: FA0705000993019 PARTIES Complainant is National Westminster Bank plc (“Complainant”), represented by James A. Thomas, of Parker, Poe, Adams & Bernstein L.L.P., Post Office Box 389, Raleigh, NC 27602. Respondent is WhoisGuard c/o WhoisGuard Protected (“Respondent”), 8939 S. Sepulveda Blvd., Westchester, CA 90045. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <nwestmisteronline.com>, registered with Enom, Inc. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. Judge Harold Kalina (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on May 25, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 29, 2007. On May 29, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <nwestmisteronline.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 May 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 19, 2007 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@nwestmisteronline.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On June 26, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <nwestmisteronline.com> domain name is confusingly similar to Complainant’s NATIONAL WESTMINSTER mark. 2. Respondent does not have any rights or legitimate interests in the <nwestmisteronline.com> domain name. 3. Respondent registered and used the <nwestmisteronline.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, National Westminster Bank, is a leading financial institution based in the United Kingdom, offering a full range of financial services, including personal and business banking and credit cards. Complainant has conducted business under the NATIONAL WESTMINSTER mark for almost 40 years and now operates online through several related domain names. Complainant holds trademark registrations for the National Westminster Bank and NATIONAL WESTMINSTER mark with both the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,587,103 issued March 13, 1990) and the United Kingdom Intellectual Property Office (“UKIPO”) (Reg. No. 1,444,866 issued January 7, 1994). Respondent registered the <nwestmisteronline.com> domain name on November 27, 2006. Respondent’s domain name originally resolved to a fraudulent banking website impersonating Complainant and using Complainant’s mark. Respondent’s website also requested that Complainant’s customers enter their account usernames and passwords, in an attempt to gain personal and financial information. The disputed domain name now resolves to the homepage of the registrar NameCheap. DISCUSSION Paragraph 15(a) of 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." In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) 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 Complainant’s registration of the NATIONAL WESTMINSTER mark with the USPTO and the UKIPO sufficiently establishes Complainant’s rights in the mark under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”). Respondent’s <nwestmisteronline.com> domain name is confusingly similar to Complainant’s NATIONAL WESTMINSTER mark. The disputed domain name deletes the letter “n” from the word WESTMINSTER in Complainant’s mark, and adds the word “online” onto the end of the mark. Also, Respondent adds the letter “n,” which is the first letter of the first word in Complainant’s mark, onto the beginning of the word WESTMINSTER. Moreover, the addition of the generic top-level domain (“gTLD”) “.com” is irrelevant to a Policy ¶ 4(a)(i) analysis as a gTLD is a required element of all domain names. Thus, the <nwestmisteronline.com> domain name is confusingly similar to Complainant’s NATIONAL WESTMINSTER mark under Policy ¶ 4(a)(i). See Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to the complainant’s mark, ICQ); see also Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."). Rights or Legitimate Interests Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights or legitimate interests in the <nwestmisteronline.com> domain name. Once Complainant has established a prima facie case, however, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name. In the present case, the Panel finds that Complainant has made a prima facie case. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). Respondent’s failure to answer the Complaint raises the presumption that Respondent lacks rights or legitimate interests in the disputed domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). Nevertheless, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c). There is nothing in the record to suggest that Respondent is commonly known by the <nwestmisteronline.com> domain name, and Respondent’s WHOIS information does not indicate that it is known by the disputed domain name. Moreover, Respondent is not authorized or licensed by Complainant to use the NATIONAL WESTMINSTER mark in any way. The Panel thus finds that Respondent lacks rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). Respondent’s <nwestmisteronline.com> domain name originally resolved to a fraudulent banking website that appeared to be affiliated with Complainant’s banking services, requesting that customers enter their account username and password, presumably for Respondent’s own benefit through acquiring this personal and financial information. This practice, known as “phishing,” does not qualify as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“‘Phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.”); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent’s disputed domain name originally resolved to a website purporting to be affiliated with Complainant. The Panel presumes that Respondent somehow benefited commercially when customers entered their account usernames and passwords. The Panel finds that Respondent was capitalizing on the likelihood that customers would confuse the fraudulent website located at the <nwestmisteronline.com> website with services legitimately offered by Complainant. This indicates that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain). Furthermore, Respondent solicited Complainant’s customers’ personal and financial information through the website that resolved from the <nwestmisteronline.com> domain name. Again, this is evidence of “phishing” and also qualifies as bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. 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 <nwestmisteronline.com> domain name be TRANSFERRED from Respondent to Complainant. Judge Harold Kalina (Ret.), Panelist Dated: June 30, 2007 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

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