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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bancolombia S.A. v. Elpidia Finance Corporation
Case No. D2000-0545
1. The Parties
The Complainant is Bancolombia S.A., a Colombian financial institution incorporated under the laws of the Republic of Colombia, with principal place of business at Calle 50 No. 51-66, Medellнn, Colombia (the "Complainant"), represented in this proceeding by Mr. William M. Dallas, of Sullivan & Cromwell, New York, NY 10004, USA.
The Respondent is Elpidia Finance Corporation, a Panamanian company, with principal place of business at Calle 24 Sur No. 81B-18 BF10 52, Bogotб, DC, Colombia (the "Respondent"), represented in this proceeding by Mr. Carlos A. Espinosa, of De Vivero – Espinosa & Asociados, Bogotб, DC, Colombia.
2. The Domain Name and Registrar
The domain name at issue is <bancolombia.com>, registered with Network Solutions, Inc., of Herndon, VA 20170, USA.
3. Procedural History
On June 2, 2000 a Complaint in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 (the "Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules") was submitted by e-mail to the WIPO Arbitration and Mediation Center (the "Center"). On June 6, 2000 the Complaint was received by the Center in hard copy.
On June 8, 2000 the Center sent to the Respondent a Notification of Complaint and Commencement of Administrative Proceeding.
At the Centerґs request of June 6, 2000, on June 8, 2000 the Registrar confirmed to the WIPO Center that the domain name at issue was registered through Network Solutions, Inc., that Elpidia Finance Corporation is the current registrant, and that the domain name is in "Active" status.
On June 20, 2000 the Respondent submitted a Response. On June 21, 2000 the Center acknowledged receipt of the Response. On June 22, 2000 the Respondent submitted some statements missing in the original Response.
After having received Roberto A. Bianchiґs Statement of Acceptance and Declaration of Impartiality and Independence, on July 6, 2000 the Center appointed him as a Sole Panelist. The decision date was scheduled for July 19, 2000. Thus, the Administrative Panel finds that it has been properly constituted.
The Panel sharing the Centerґs assessment of June 8, 2000, independently finds that the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules, and that payment of the fees was properly made.
There were no other submissions, nor were extensions granted or orders issued.
The registration agreement for the domain name at issue has been done and executed in English by Respondent-Registrant and the Registrar. The Partiesґsubmissions and exhibits have been made in English, except for some exhibits in the Spanish language. The Panelist reads and speaks Spanish and does not need translation thereof. Seeing the Panel no special circumstances to determine otherwise, as provided in Rules, Paragraph 11, the language of this proceeding is English.
4. Factual Background
The following facts have been established:
The Complainant owns "BANCOLOMBIA" service mark registrations for a 10-year term in following countries: Colombia: (As annexed model), Registration No. 225310 dated December 17, 2000, class 36, covering insurances, financial business, currency Business, real state business. Bolivia: Application No. SM 98-1708 dated May 6, 1999, Register Certificate No. 76645 dated January 17, 2000, service mark, class 36, covering financial and monetary business and financial services. Ecuador: Registration N. 216-00 DNPI dated February 22, 2000, class 36, all services particularly financial and monetary business, and financial services. Peru: Registration No. 009345 dated August 11, 1998, class 36 services: financial business, monetary business, financial and banking services.
The domain name <bancolombia.com> was first registered by the Respondent with the Registrar on or about October 9, 1997 expiring in October 1999. The registration was renewed on or about October 10, 1999 for a 1-year period ending October 10, 2000.
5. Parties’ Contentions
The Complainant contends that:
The name "Bancolombia" is a contraction of Banco de Colombiaґs trade name. Bancolombia is the largest commercial bank in Colombia. It was formed in April 1998 from a merger of Banco Industrial Colombiano with Banco de Colombia. In late August 1997 Banco Industrial Colombiano and Banco de Colombia issued a public announcement that they reached agreement to merge their banks to form Colombiaґs largest commercial bank. The announcement was widely reproduced in Colombia, United States and elsewhere. On or about October 9, 1997 the Respondent registered <bancolombia.com>. The Respondent is a shell company not registered to do business in Colombia. Bancolombia discovered that registration only in April 1998.
Bancolombia attaches particular importance to associating its tradename with the ".com" TLD to present itself as an international Bank. Customers abroad will use Bancolombia web site within ".com" more likely than within the much less known ".co" country code TLD.
In December 1998 counsel for Bancolombia contacted Mr. Espinosa, a representative for Respondent to discuss transfer of the domain name. Mr. Espinosa demanded US$ 200,000. Complainant refused this demand for payment.
The domain name in issue is identical to Complainantґs mark Bancolombia, registered in Colombia, Peru, Bolivia and Ecuador, and continuously used by Complainant since April, 1998.
Respondent has no rights or legitimate interests to the domain name. Under Colombian law only banks and financial institutions have a right to use the word "banco" ("bank") in their trade names. Elpidia is not authorized to engage in banking or other financial activities in Colombia, nor may use the word "banco". Respondent is not authorized to trade or do business under the trade name Bancolombia.
Respondent registered the domain name <bancolombia.com> in bad faith, shortly after the public announcement of the merger of August 1997, and thereby prevented Bancolombia from using the domain name. The registration was with the purpose of selling it to Bancolombia at a huge profit, for US$ 200,000. Further evidence of bad faith registration and use is the fact that from its inception the web site <bancolombia.com> has been "under construction". At the same time the web site falsely implied connection with the Complainant at stating: "Come back soon! We will be providing you with the most updated financial information in Colombia". No disclaimer of affiliation with the Complainant exists on the web page. Respondent has created a false impression that the web site is operated by the Complainant, and that Complainant lacks interest or sophistication to develop a meaningful web site. This damages the value of Complainantґs services and trademark, and is harmful to its reputation.
Substantial consumer confusion has been caused by this improper registration and use. The site indicates over 75,000 visits. Few visitors presumably sought out Respondent’s web site to view an "under construction message". It is highly likely that the site was visited by people seeking banking services or information from Complainant. They reasonably expected a web site bearing this domain name to be operated by Complainant.
The Respondent inter alia alleges:
The domain name registration was effected when the two merging institutions had not reached agreement on the merger, nor on the commercial name they would use. The trademark Bancolombia S.A. did not exist before the merger.
The Complainant found out in 1998 that the domain name in issue belonged to someone else.
The name "Bancolombia" was not approved until December 1997. The merger took place in April 1998. The Complainant registered "bancodecolombia.com.co" on June 1, 1998.
Bancolombia was created on April 3, 1998. Before that date there was no such institution under that name. Bancolombia is not related to the name Banco de Colombia. Banco de Colombia was not the prevailing institution after the merger. Banco de Colombia was taken over and absorbed by Banco Industrial Colombiano.
The Complainant created the name "Bancolombia" only in April 1998, not before. Even if the BANK had considered before October 1997 the possibility of using that name (which it did not), it would have been his own negligence what made him start the trademark registering proceedings only after December 7, 1997. The Complainant, according to the WHOIS database, registered the domain name <bancodecolombia.com> only on November 17, 1997, so maybe on that date the decision was to keep using the original name thus not creating a new one.
The domain name was registered on October 9, 1997, but it had no relation to any public announcement. At the time of the domain name registration the merging entities did not even have an agreement about the name for the new institution. Additionally ELPIDIA FINANCE INC. is a Panamanian company, so it does not have to be registered in Colombia and is not submitted to the law of this country for its incorporation and existence, being its main place of business the Republic of Panama.
If it is true that Bancolombia only noticed that the domain name <bancolombia.com> had been registered in April 1998, that only shows that the BANK only started to look for the possibility of obtaining the registration of a domain with its new name in 1998, for the very obvious reason that until then the BANK had not adopted the name.
The BANK admits that it has used the name Bancolombia only after April 1998 and not before that date. This admittance must have the consequences of a confession as it is made by the Complainant through his attorney at the moment of establishing the facts and grounds for its complaint.
The name for the domain was chosen and registered even before the banks to be merged had agreed on the name they would be adopting for the new institution.
The Respondent has never made any act (except when expressly requested so by the BANK) to try to sell the domain name to the BANK. The Bank attorney has confessed that it was the BANK through its legal counselors who asked for the sale of the domain name. Respondentґs attorneys in Bogotб contacted the Respondentґs representative in order to determine the interest on selling the domain. This contact was made on or around December 15 1998 by the law firm LLOREDA & CIA, arranging a meeting in their offices for December 16. In that meeting Mrs. Alicia Lloreda asked the Respondentґs representative if it would be interested in selling the domain name, considering the fact that the BANK needed it for its new commercial strategy. She also made clear that the BANK would use all its power to obtain the domain and as a consequence it would be smart for the Respondent to make a selling offer. In its communication dated December 18 the Respondent wrote: "In relation to the above cited reference, and after consulting with our clients, we inform you that they would be interested on selling and transferring the domain, for the amount of US 200.000 payable on the way he had the chance to discuss during our meeting". (Respondentґs emphasis). The Respondent presented that offer to avoid litigation it could not afford at that time, and because the owners were in a difficult economic situation due to the investments made in other internet projects, elements all put on the table during the talks with the Bank's attorneys.
The financial institution called BANCOLOMBIA S.A. was created on April 3, 1998, by the public deed number 663, before the 4 Notary of the City of Medellin. The domain name registration was made by ELPIDIA on October 9, 1997. That institution (the BANK) was created as a result of the merger by acquisition or absorption of the Banco de Colombia, by the Banco Industrial Colombiano, as it is recognized on the previously cited public deed. As a consequence of the merger by acquisition, the Banco de Colombia disappeared and its stockholders became stockholders of the Banco Industrial Colombiano, as it is clearly stated in the public deed. According to Colombian law, when a company is merged into an other one by acquisition, the absorbed company ceases to exist, and without been liquidated, becomes a part of the acquiring company.
On August 25, 1997, the two banks signed a preliminary agreement for a possible merger, and on that date they started the proceedings. The details and particulars of this agreement were not a public knowledge until the end of the year. The board of directors of the Banco Industrial Colombiano accepted the merger in November 26 1997. The board of directors of the Banco de Colombia accepted the merger in November 25, 1997. As we already stated before, the two institutions had not decided the name they would adopt to continue operating, and for that reason, as it is affirmed in the SEMANA magazine article (annex 3), they hired a group of experts who would recommend the name for the new institution. The parties were not considering a third new name. It was only until December 3 1997 that the two institutions required the authorization from their respective stockholders assembly, after coming to and end with the negotiations. The merger agreement is incorporated on the public deed of April 1998 and on that document there is no mention about the new BANK name. The Colombian authorities authorized the merger in February 18, 1998. In or around February 1998 the experts recommended the name "Bancolombia", because it reunited the identities of the two banks, and it also brought together the common element to the banks names, the word Colombia.
Only on these dates, the Board of Directors after studying the conclusions of the marketing research, decided to adopt the name "Bancolombia", abandoning their original idea of using one of their own commercial names. Before that date, not only the name Bancolombia did not exist, but what is more important, the two merging parties had not even come to an agreement about the name for the entity to be created as a result of their merger. As late as March 24, 1998, the stockholders general assembly of BANCO INDUSTRIAL COLOMBIANO approved to change it's name for BANCOLOMBIA. At this time, the two institutions were all ready legally although not operatively merged. In the record of that meeting, incorporated to the merger public deed, the stockholders refer to the need of "deciding about " the name for the new company. Some of the stockholders tried to oppose to the adoption of this name. That public deed explains why the domain BANCODECOLOMBIA.COM was registered in November 1997, while the name BANCOLOMBIA was registered with the Colombian authorities at the beginning of 1998 and as a domain until June of the same year. The two banks informed the name they were considering to the Superintendencia Bancaria only on October 9 1997.
The possible merger was kept completely a secret until August 25 1997. On the edition of SEMANA of that date, the magazine announced the possible merger, indicating that until that day, the negotiations have been developed in absolute silence and were only in its early stage. The article does not talk about an agreed merger, it only signals that the talks are under way.
Even if there were some news made public in Colombia about the merger, by reading the article, there is no doubt that the merger was not agreed, the public deed and the other events cited before allow to establish that the merger was only approved by stockholders at the end of 1997.
At the moment public knew about the merger, the parties were not even considering the name Bancolombia, which was adopted, only in early 1998.
The BANK informed its customers about the adoption of the new name only in July 1998. This assertion is proved a letter sent by the BANK to its customers, where they inform about the adoption of a new name. This means that the name Bancolombia was created only on early 1998, its adoption by the merging companies only occurred until March of the same year, and the BANK only adopted that name as a trademark for business in or around July 1998.
Colombian authorities granted the BANK the rights over the "BANCOLOMBIA" trademark until December 7, 1999.
Respondent is a holding company, based in Panama, through which its owners pretended to develop a web site whose complete denomination is "banking financial and insurance information about colombia, bancolombia.com".
The Respondent and its owners are in the business of creating web sites, making them operational and profitable. They do not register domain names for later finding a buyer.
Other allegations by the Respondent are examined under 6 below.
6. Discussion and Findings
6.1 Independent visit to the web site <bancolombia.com> by the Panel
Under Rules, Paragraph 10(a) the Panel has powers to independently visit a web site to establish fact relevant to the dispute. On July 19, 2000 the Panel visited the site at http://www.bancolombia.com. Only the following screen appeared: "bancolombia.com. Under Construction. Come back soon!, We will be providing you with the most updated Financial Information in Colombia"
6.2 Identity or Confusing Similarity
It is clear beyond doubt that <bancolombia.com> is identical or – having in mind the addition of ".com" – at least confusingly similar to the service mark "Bancolombia". The Respondent has admitted that the domain name is "very similar" to the mark Bancolombia, even if attributing bad faith to the Complainant. See Response, Chapter V.
The Complainant has proved its rights on the service mark "Bancolombia". The question lies before the Panel whether such or any other rights on the mark are a basis under the Policy for initiating this proceeding. The Respondent has contended that the mark "Bancolombia" did not existed at the time it registered the domain name <bancolombia.com>.
Respondent has supplied, as an Annex No. 2 to its Response, a copy of the legal documents dated April 3, 1998 under which the merger of Banco Industrial Colombiano ("BIC") and Banco de Colombia ("BdC") took place.
The merger was approved by the BIC Board on November 26, 1997, and by the BdC Board on November 24-25, 1997. Under clause No. 1 both Banks agreed formally to merge. The merger consisted of BIC absorbing BdC. The latter ceased to exist without liquidation. Under clause No. 5 all assets and liabilities of BdC were transferred to BIC. BIC accepted such transfers. It is evident for the Panel that thereby BdC was inter alia transferring its intellectual property assets to BIC. Under clause No. 13 such transfers would be effected according with the legal nature of each asset. That was the decision made by the Boards of BIC on November 26, 1997, and of BdC on November 24, 1997 respectively, under its paragraph fifth.
In its General Assembly of March 24, 1998 the shareholders of BIC had decided to modify the articles of incorporation of BIC. Under new Article 1 the name of the BIC is changed to BANCOLOMBIA S.A. The name "BanColombia" is authorized for use in Bank branches, products and services. Bancolombia S.A. is also authorized to trade under the name of "Banco de Colombia S.A."
The Panel considers very important the fact that under a provisory paragraph, the General Assembly decided – pending the process of merger and while the new trade names, and designs are defined and registered - that all branches and agencies of both BIC and BdC would keep their current names, designs and marks, and that all liabilities emerging from their operation would be accepted by the absorbing entity under its new corporate name Bancolombia S.A. Panel’s emphasis. This means that the merger by absorption did not extinguish any intellectual property belonging to the absorbed bank Banco de Colombia S.A., and particularly, that Banco de Colombiaґs rights on its marks subsisted during and after the merger process. The mark "Banco de Colombia", an asset that was to be transferred to the new entity produced by the merger.
This latter also means that, being the name Bancolombia very closely similar to "Banco de Colombia", nobody in Colombia was legally entitled to register the mark "Bancolombia" except Banco de Colombia S.A. or, following the merger, Bancolombia S.A.
The fact that the Bancolombia mark registrations in Colombia, Bolivia, Peru and Ecuador were finally obtained by the Complainant long after their application cannot represent an advantage for a registrant of a domain name identical to the service mark following its acquiring notice of the ongoing merger. See 6.4 below. The Panel accepts that the process of trademark registration in many countries is slow, but this fact cannot prejudice the legal position of the Complainant in this proceeding.
The Panel therefore finds that the domain name in issue is identical or at least confusingly similar to the Complainantґs mark (Policy, Paragraph 4(a)(i)).
6.3 Rights and Legitimate Interests in the Domain Name
Complainant has contended that Respondent has no rights or legitimate interests in the domain name, that Elpidia is not authorized to engage in banking or other financial activities in Colombia, that it may not use the word "banco", and that it is not authorized to trade or do business under the trade name Bancolombia. Respondent states that its Company is a Panamanian company that does not have to be registered in, nor is subject to the law of Colombia for its incorporation and existence, being its main place of business the Republic of Panama. Respondent alleges that it has never attempted to develop a banking institution, but an information center as it has done in the past with other web sites that were developed and later sold as ongoing concerns. Once it is operating as a key web site to get into Colombia’s finance sector, the Respondent will be able to sell it, as it has done in the past. Respondent further contends that it has a legitimate interest on the domain name, and that it was chosen to develop a web site containing all the financial, banking and insurance information about Colombia and the Andean Pact. The main clients of the site would be would be precisely the financial institutions. Respondent is a holding company, based in Panama, through which its owners pretended to develop a web site whose complete denomination is "banking financial and insurance information about colombia, bancolombia.com".
In Chapter VI of the Response, Respondent states that its original idea for the site <bancolombia.com> was to provide financial data to the public regarding to interest rates on loans and investment, home loans, car loans and general project financing, stocks and bonds, market prices, rates of exchange, futures, etcetera and selling advertising to financial institutions. It adds that the decision to make a selling offer was made due to the fact that by December 1998 Respondent had already made a "substantial investment in developing the site", its main objective of selling advertising had vanished. Some of the Respondentґs partners had outstanding loans with these banks. If the Respondent can go ahead without interference of the Complainant, the Respondent will be able to sell the domain name, as the Respondent has done in the past, once it is operating as a key web site to get into Colombia’s finance sector.
In the Panel’s interpretation of the Respondentґs words, there has been a dispute during the second half of 1999 concerning the domain name, and the registrar has put it "on hold". Respondent states that because of this its investors were worried about the project, which explains that the legend "under construction" was placed on the web page until the present moment. Respondent mentions that the registrar made a decision in Respondentґs favor, and after that decision the Respondent decided to continue and search for foreign investors for the site, and that Respondent found a US Corporation who is willing to provide funding and contents to provide additional capabilities to the site. In the present time the site is again "under construction" until a final decision is reached.
The Panel considers that there is no evidence that supports Respondentґs assertions above. Respondent failed to present the Panel with any evidence i.e. hard copies of web sites screens, WHOIS records, or any other proof whatsoever. Respondent accepts that its web site at http://www.bancolombia.com is "under construction", that is that no meaningful contents - i.e. financial, banking or insurance information - was ever posted thereon. Respondent fails to submit any evidence about its activities at creating, developing web sites and selling operational domain names once the domains are attractive to investors. No list of such web sites was furnished by the Respondent in this proceeding.
By failing to comply with the Rules, Paragraph 5(b)(ix), i. e. annexing any documentary or other evidence of its assertions, Respondent has not supplied the Panel with elements that could reasonably allow to infer that "before any notice of the dispute Respondent was using the domain name or had demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services". See Policy, paragraph 4(c)(i). Nor has Respondent evidenced any other of the circumstances of Policy, paragraph 4(c).
Respondent also mentioned a US corporation willing to provide funding and contents to the Respondent to provide additional capabilities to the site. However, Respondent did not even mention the corporation’s name, nor stated anything specific about the joint project. Thus Respondentґs vague assertions about its having rights or legitimate interests in the domain name, i.e. using it in good faith, remain without any factual support.
For the above reasons the Panel concludes and finds that the Complainant, under Policy, Paragraph 4(a)(ii), has met its burden at demonstrating that the Respondent has no rights or legitimate interests in the domain name.
6.4 Registration in Bad Faith
The Respondent is not a financial institution. By its own statements, Respondent is doing business in Panama. However, according with the information provided by the registrar to the WIPO Center, Respondent has an address in Bogotб, and its representative in this proceeding and administrative contact in the domain name registration also has an address in also Bogotб, and is a Colombian citizen.
This means that Respondent could not reasonably ignore the existence of Bancolombia S.A., the Complainant, the biggest bank in that country. The Panel considers that it its highly unlikely that before the moment of registration the Respondent ignored the fact that a merger of Banco Industrial Colombiano and Banco de Colombia was under way, and that "Bancolombia" was the name to be used by the institution resulting from the merger. There is no contradiction between the fact that by the time of the domain name registration there had been no "official announcement" of the corporate name and trade name of the new institution, and the fact that there were most likely leaks from the press or from insiders to the merger about "Bancolombia" being the name or such new institution. The Respondent itself has stated that such leaks could have occurred, and admits that "(...) there were some news made public in Colombia about the merger" (...) before the merger was announced. The Respondent also states: "As to the alleged announcement of August 1997, it is not completely true the way it is presented. The information was not provided to the press by the banks, but leaked by some insider to the operation." This means that the report of the SEMANA weekly about the merger having been kept absolutely secret is not very convincing, particularly when the same source states that the merger talks between both banks had began two and a half months before SEMANA reported the merger. The Panel concludes that those leaks have most likely given notice of the coming merger to the Respondent, who registered the domain name in issue two months later.
Additionally the Panel notes the facts that the Respondent is a "finance company" or a "finance corporation", and that it is announcing on its web site that [it] "(...) will be providing [the public] with the most updated Financial Information in Colombia". See 6.1 above. This allows the Panel to conclude that the Respondent, whether doing business in Colombia or in Panama, is sufficiently sophisticated in Colombian business matters and business information as to be particularly informed and alert about ongoing merger negotiations between two of the most important financial institutions in Colombia.
The Panel considers that there is a remarkable similarity between this instant case and the situation considered by a WIPO Panel in Case D2000-0135 A.P. Møller v. Web Society, where the learned panelist Mr. Alan L. Limbury found that "[i]t is not credible that the respondent [...] registered the domain names [...] without knowledge that the complainant was negotiating to merge with Sea-Land. The panel finds the respondent did have such knowledge", and "[...] the disputed domain names [...] could not plausibly have been registered when they were unless the respondent knew about the merger negotiations". It must be noted that in A.P. Møller the merger negotiations began in the (northern hemisphere) autumn of 1998 and the respondent registered the domain names on December 14, 1998, not later than three months following notice of merger. Idem, para. 6. It is further relevant to note that the registrant of the domain names in A.P. Møller is an entity located in Korea, while the trademark owner is doing business in Denmark. In the instant case the domain name registrant is located either in Panama, a country neighboring to Colombia, or in Colombia itself, which most plausibly explains why the Respondent acquired cognizance of the merger talks registration occurred, and decided to extract a profit therefrom by registering <bancolombia.com>.
Absent "miraculous coincidences", the Panel considers that the Respondent moved fast to register a domain name identical of confusingly similar to the service mark of the Complainant, after having the Respondent acquired notice of the ongoing merger and of the fact that the Complainant would be using the trade- and corporate name, and service mark Bancolombia, in which the Complainant had rights. See 6.2. above.
The result of the contacts between the Parties shows that the primary purpose of the Respondentґs domain name registration was to sell the domain name to the Complainant for a consideration (US$ 200,000.00) that by far exceeded documented out-of-pocket costs related to the domain name. See Policy, Paragraph 4(b)(i). The Respondent has also failed to explain which were the costs, if any, of its project concerning the development of the web site it owns.
In the instant proceeding, having the Respondent no rights or legitimate interests in the domain name (see 6.3 above) it is immaterial who was in fact the Party who first contacted the other one. Having the Respondent not developed any meaningful contents of the web site, nor shown any legitimate or bona fide use of the domain name in issue, nor any demonstrable preparations to use it, the Panel has to conclude that the primary or chief purpose of the registration was to sell it at a profit.
The web site of the Respondent has remained "under construction" following registration until this very moment. The Panel considers that even a site "under construction" can serve an intentional attempt to attract, for commercial gain, Internet users by creating a likelihood of confusion with the complainant’s mark as to the source of the web site (Policy, Paragraph 4(b)(iv)), which is a circumstance of bad faith registration and use. The element of "commercial gain" is present in the attempt by the Respondent to sell the domain name itself at an enormous profit.
Absent any convincing evidence by the Respondent, the Panel is not satisfied that the permanent "under construction" status of its web site is due to the Respondentґs investors or shareholders being worried about the prospects of the site. Such a permanent status appears instead as an easy and apt scheme, without incurring in any development costs, to force Complainants into negotiations for the transfer of the domain name at a very high price. The Respondent asserts in its Response "we are not in the domain selling business". This Panel cannot but wonder which instead is the Respondentґs real business. In this proceeding it certainly failed to evidence its good faith.
The Panel thus finds that the Complainant has met its burden under Policy, Paragraph 4(b)(iii), at demonstrating that Respondent registered the domain name in issue in bad faith.
6.5. Use in Bad Faith
Absent rights or legitimate interests of the Respondent in the domain name, its offer to sell it to the Complainant at a huge profit is a use of the domain name. It is also a bad faith use as it has been found in decisions of WIPO panels, such as D99-0001 World Wrestling Federation v. Bosman, D2000-0135 A.P. Møller v. Web Society, and many others.
Accordingly, the Panel finds that the Respondent is using the domain name in bad faith.
The Panel has found that the domain name <bancolombia.com> is identical or at least confusingly similar to the service mark of the Complainant, and that the Respondent has no rights to or legitimate interests in said domain name. The Panel has further found that the domain name has been registered in bad faith, and is being used in bad faith.
Therefore, pursuant to Policy, Paragraph 4(i) and Rules, Paragraph 15, the Administrative Panel decides to require that the registration of the domain name <bancolombia.com> be transferred to the Complainant, Bancolombia S.A.
Roberto A. Bianchi
Date: July 19, 2000