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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hang Seng Bank Limited v. Websen Inc.
Case No. D2000-0651
1. The Parties
The Complainant in this administrative proceeding is Hang Seng Bank Limited, a company incorporated under the laws of Hong Kong with its registered office at 83 Des Voeux Road, Central, Hong Kong (SAR), China.
The Complainant is represented by Messrs Johnson Stokes & Master of 19th Floor, Prince’s Building, 10 Chater Road, Central, Hong Kong (SAR), China (Miss Rosita Li). The Respondent in this administrative proceeding is Websen Inc of PO Box 6608, Oakland, California, 94603, U.S.A. A Network Solutions WHOIS search exhibited as Annex "A" to the Complaint gives a billing contact e-mail address for the Respondent as ivy47397@AOL.com. A letter from Websen Co to Hang Seng Credit Limited exhibited by the Complainant as Annex "E" gives an address for Websen Co as 27 Sunny Oaks Drive, San Rafael, California, 94903, U.S.A. with an e-mail address of firstname.lastname@example.org.
2. The Domain Name and Registrar
The Domain Name in dispute is "hangsengcredit.com". The Registrar is Network Solutions Inc who confirmed by e-mail dated July 3, 2000 that Websen Inc is the current registrant of "hangsengcredit.com".
3. Procedural History
The WIPO Arbitration and Mediation Center received the Complaint on June 22, 2000 by hard copy. The Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules with payment of the requisite fee being made by the Complainant. On June 27, 2000 the Center acknowledged receipt of the Complaint but requested a copy in electronic format as required by paragraph 3(b) of the Rules. Notification of the Complaint was given to the Respondent on July 5, 2000 which is also the date for the commencement of the Administrative Proceedings. The Complaint was communicated to the Respondent Websen Inc. by post, by fax and by e-mail. The Complaint was also communicated by post and fax to 27 Sunny Oaks Drive, San Rafael, California, 94903 U.S.A and to P O Box 6608, Oakland, California, 94603, U.S.A. By e-mail the Complaint was communicated to "email@example.com" and "firstname.lastname@example.org" respectively. The Complaint was also communicated to the technical contact for the Respondent postmaster, Best Internet (B1H2), Best Internet Communications, Inc, 345 E. Middlefield Road, Mountainview, California, 94043, USA. and by e-mail to "email@example.com". The Panel has seen copies of the posting receipts and fax receipts.
No response appears to have been received from the Respondent and notification of the Respondent’s default was given to Websen Inc by e-mail at "firstname.lastname@example.org" and at "email@example.com" on July 25, 2000.
On August 24, no response still having been received from the Respondent a three member Panel was appointed consisting of Clive Thorne as Presiding Panelist and Marylee Jenkins and Clark Lackert as Panelists. All three panelists have submitted a statement of acceptance and a declaration of impartiality and independence.
4. Factual Background
The Complaint is based on the Complainant’s trade mark registration for the mark "Hang Seng Bank Limited" which has been registered in respect of various services in Class 36 in the United States under registered number 1,594,530. A copy of the relevant registration certificate is annexed as Annex "C" to the Complaint. The Complainant also adduces evidence of a significant number of marks containing the names "Hang Seng" in respect of a wide range of goods and services world wide. These are listed and annexed as Annex "D". The Complainant has also registered, inter alia the domain names "hangseng.com" "hangsengbank.com" and "hsiservices.com" on October 24, 1995. The website "www.hangseng.com" has apparently been in active use since October 24, 1995.
The Complainant is Hong Kong’s second largest home grown bank. It is a strongly capitalised commercial bank focusing on Hong Kong and China specialising in a wide range of retail banking, corporate banking and treasury services. The Complainant was founded in 1933 and currently maintains a large network of 156 branches in Hong Kong and in China. It employs about 7,400 staff. It is also a member of the HSBC Group which is among the worlds largest financial services organisations and holds a 62.14 % equity interest in the Complainant. The Complainant is also amongst the largest publicly listed companies in Hong Kong. It is quoted on SEAQ International in the United Kingdom and offers investors in the United States a Sponsored Level-I American Depository Receipts Programme. The Complainant also maintains the famous "Hang Seng Indexes" which are all important financial indexes in the world. The Complainant has a wholly owned subsidiary called "Hang Seng Credit Limited in Hong Kong. The name of this subsidiary corresponds with the domain name in dispute. Other subsidiary companies include "Hang Seng Credit (Bahamas) Limited" and "Hang Seng Credit Card Limited".
In the absence of any contrary evidence from the Respondent the Panel is prepared to accept the Complainant’s evidence as to the Complainant’s trade mark rights and the evidence of its trading activity.
At Annex "E" to the Complaint is exhibited a letter from the Chief Executive Officer of Websen Co, Mr Tibor Laczay dated October 9, 1999 addressed to the marketing department of Hang Seng Credit Limited indicating that Websen Co has come into possession of some Domain Names including "hangsengcredit.com". The letter purports to offer the services of Websen Co to Hang Seng Credit Limited and indicates that "for a small fee we will transfer ownership and register your domain name hangsengcredit.com". It should be noted that this letter is written on paper headed Websen Co and not the name of the Respondent Websen Inc. However, the domain name subject to Websen Co’s letter is registered in the name of Websen Inc.
A cease and desist letter was sent by Jonathan Stokes & Master to Websen Inc (not Websen Co) at 27 Sunny Oaks Drive, San Rafael, California, 94903, U.S.A. addressed to Mr Tibor Laczay on January 22, 2000. This is annexed to the Complaint as Annex "F". The Complainant indicates that no reply was received. The Complainant has not explained in the Complaint the distinction between Websen Inc and Websen Co
5. Parties Contentions
The Claimant in accordance with paragraph 4(a) of the Policy asserts:-
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name is registered and is being used in bad faith.
There is no response from the Respondent.
(i) The domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights.
The Panel accepts on the basis of the evidence of trade mark rights given by the Complainant that the Complainant succeeds in respect of paragraph 4(a)(i) of the Policy. The domain name is confusingly similar to the Complainant's trade marks "Hang Seng".
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name.
The Panel is prepared to accept that the Respondent which has been properly served with the Complaint has adduced no evidence of any rights or legitimate interest in respect of the domain name. In particular there is no evidence of the Respondent’s use or preparation to use the domain name. Further the Respondent’s name Websen Inc. is totally different from the domain name in dispute.
(iii) The Domain Name is registered and being used in bad faith.
The Complainant is under an obligation to prove this element. In doing so the Panel is entitled to rely on the instances set out in paragraph 4 (b) of the Policy. Of particular relevance is paragraph 4 (b) (i) which indicates that evidence of a registration and use of a domain name in bad faith shall exist if there are
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name
registration to the Complainant who is the owner of that trade mark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name".
In relying upon this subparagraph the Complainant refers to the letter from Websen Company of September 10, 1999. The letter mentions the domain name and is addressed not to the Respondent but to Hang Seng Credit Ltd at the Respondent's Hong Kong address. The difficulty from the Panel’s point of view is that that letter is written by Websen Company and not by Websen Inc. the Respondent. No evidence is given by the Complainant which appears to link Websen Inc and Websen Co.
The Panel is nevertheless prepared to accept that the fact that a letter was sent by Websen Co in respect of a Domain Name registered in the name Websen Inc is prima facie evidence of a relationship between Websen Co and Websen Inc. Further Websen Inc would have had an opportunity to deal with this point by way of defence if it had chosen, as Respondent, to serve a Response. The Panel is therefore prepared to accept that the letter of October 10 should be taken as having been written on behalf of the Respondent.
There remains the question of whether the offer to transfer ownership of the domain name for "a small fee" constitutes "valuable consideration in excess of your documented out of pocket costs directly related to the domain name" for the purposes of paragraph 4(b)(i) of the Policy. The Complainant asserts that the fact that the reference to a "small fee" does not confirm whether such amount merely covers out of pocket costs directly related to the domain name is clear evidence of bad faith. The Panel is prepared to accept the Complainants view. "A small fee" can encompass "valuable consideration" in excess of documented out of pocket costs. No evidence has been given by the Respondent in respect of this point.
The Panel takes the view that the mark "Hang Sent" because of its wide use and promotion internationally has become so well known and "famous" that any third party seeking to register and deal in a confusingly similar domain name such as that in dispute must create a presumption of bad faith. Further the fact that Websen Co admits to offering "services" is evidence of use of the name.
The Panel therefore finds for the Complaint in finding that the Domain Name has been registered and is being used in bad faith.
For the reasons given above the Panel finds in favour of the Complainant and orders that the domain name "hangsengcredit.com" be transferred to the Complainant as requested by the Complainant.
Clive Duncan Thorne
Marylee Jenkins Clark Lackert
Dated: September 12, 2000