Personnelonlinebankofamerica.com

The timeline behind personnelonlinebankofamerica.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 Bank of America Corporation v. Domain Administrator Claim Number: FA0802001144147 PARTIES Complainant is Bank of America Corporation (“Complainant”), represented by Randel S. Springer of Womble Carlyle Sandridge & Rice, PLLC, North Carolina, USA. Respondent is Domain Administrator (“Respondent”), Belgium. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <personnelonlinebankofamerica.com>, registered with Moniker Online Services, Inc. PANEL The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically February 12, 2008; the National Arbitration Forum received a hard copy of the Complaint February 13, 2008. On February 21, 2008, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <personnelonlinebankofamerica.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. verified that Respondent is bound by the Moniker Online Services, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On March 4, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 24, 2008, 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@personnelonlinebankofamerica.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 1, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <personnelonlinebankofamerica.com>, is confusingly similar to Complainant’s BANK OF AMERICA mark. 2. Respondent has no rights to or legitimate interests in the <personnelonlinebankofamerica.com> domain name. 3. Respondent registered and used the <personnelonlinebankofamerica.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Bank of America Corporation, is the second largest banking company in the world. Complainant operates more than 5,800 banks in 29 states and has international offices in 35 countries, which support clients in 150 different countries. Complainant owns several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the BANK OF AMERICA mark (i.e. Reg. No. 853,860 issued July 30, 1968). Respondent registered the <personnelonlinebankofamerica.com> domain name November 19, 2006. Respondent’s disputed domain name resolves to a website containing a generic search directory with third-party links to financial firms that seek to compete with Complainant. In addition, the website contains BANK OF AMERICA marks and a link to Complainant’s official website. 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." Given 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 will draw such inferences as the Panel 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 Complainant to 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 to and/or Confusingly Similar Complainant established rights in the BANK OF AMERICA mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”); 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.”). Complainant contends that Respondent’s <personnelonlinebankofamerica.com> domain name is confusingly similar to Complainant’s BANK OF AMERICA mark. Respondent’s disputed domain name contains Complainant’s mark in its entirety, adds two generic descriptive words and adds the generic top-level domain (“gTLD”) “.com.” The same circumstances occurred in Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000), where the panel held that the respondent’s disputed domain name was confusingly similar to the complainant’s mark because the disputed domain name was a combination of the complainant’s mark and a generic descriptive term. In the instant case, the Panel also finds that the addition of a gTLD is irrelevant when distinguishing a disputed domain name from a registered mark. See 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 . . . ."). Accordingly, the Panel finds in the instant case, Respondent’s <personnelonlinebankofamerica.com> domain name is confusingly similar to Complainant’s BANK OF AMERICA mark pursuant to Policy ¶ 4(a)(i). The Panel finds that Complainant satisfied Policy ¶ 4(a)(i). Rights to or Legitimate Interests Complainant contends that Respondent lacks all rights and legitimate interests in the <personnelonlinebankofamerica.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds in this case that Complainant has established a prima facie case. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). Where a Respondent fails to respond to the Complaint, a Panel is permitted to assume that Respondent does not have rights or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel examines the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests. Complainant contends that Respondent is not commonly known by the <personnelonlinebankofamerica.com> domain name and that Complainant did not license Respondent to register domain names using the BANK OF AMERICA mark. Respondent’s WHOIS information lacks defining characteristics relating it to the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel finds that Respondent lacks all rights and legitimate interests in the disputed domain name. See 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); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”). Complainant asserts that Respondent is using the <personnelonlinebankofamerica.com> domain name in order to divert Internet users to the associated website containing a generic search directory to third-party websites, some of which are in competition with Complainant. The Panel assumes that such operation of a website containing a search directory is for commercial benefit, and finds that the use of the disputed domain name is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name). The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent’s use of the <personnelonlinebankofamerica.com> domain name to compete with Complainant is evidence of bad faith. The Panel finds that a registered domain name used that contains another’s protected mark primarily for the purpose of disrupting the business of that entity demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶ 4(b)(iii) [and] (iv).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). Respondent’s use of the <personnelonlinebankofamerica.com> domain name in order to attract Internet users to its website by creating a possiblity of confusion with Complainant’s BANK OF AMERICA mark and offering a generic search directory with third-party links to competing websites is further evidence of bad faith. The Panel infers that Respondent receives click-through fees for diverting Internet users to such websites. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad faith registration and use. See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”). In addition, Respondent’s use of the <personnelonlinebankofamerica.com> domain name to prominently display Complainant’s mark and provide a link to Complainant’s official website are further evidence of bad faith. The Panel finds that Respondent’s use of Complainant’s mark and link are evidence of constructive knowledge and pursuant to Policy ¶ 4(b)(iv), constitutes bad faith registration and use. See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18, 2000) (finding that the respondent had actual and constructive knowledge of the complainant’s EXXON mark given the worldwide prominence of the mark and thus the respondent registered the domain name in bad faith). The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii). 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 <personnelonlinebankofamerica.com> domain name be TRANSFERRED from Respondent to Complainant. Hon. Carolyn Marks Johnson, Panelist Dated: April 15, 2008. 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.