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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Christiana Bank & Trust Company v. John David Lake and Lori Lake d/b/a World Think Tank

Case No. D2000-1212

 

1. The Parties

The Complainant, Christiana Bank & Trust Company, is a state chartered bank, incorporated in the State of Delaware, with its principal place of business located at 3801 Kennett Pike, Greenville, Delaware 19807 USA.

Respondents in this administrative proceeding are John David Lake and Lori Lake, both individuals doing business as WorldThinkTank located at 188 South Shore Road, Suite 226, Lake's Loch, Elkton, MD 21921 USA.

 

2. The Domain Name and Registrar

The disputed domain name is <christianabank.com.>

The registrar of the disputed domain name is Network Solutions, Inc., with a business address in Herndon, Virginia, USA.

 

3. Procedural History

3.1 Complainant initiated the proceeding by filing a complaint via e-mail, received by the WIPO Arbitration and Mediation Center ("the Center") on September 13, 2000, and by courier mail received by the Center on September 18, 2000.

3.2 The Center was subsequently informed by the concerned registrar that the domain name was subject to the Network Solutions 4.0 Service Agreement, which requires express consent to jurisdiction in the location of the domain holder's address.

3.3 On September 29, 2000, the Center requested that the Complainant submit an amendment to its complaint whereby it agrees to submit to the jurisdiction in the location of the Respondent's address. On October 4, 2000, the Complainant filed the requested amendment to its Complaint.

3.4 On October 18, 2000, all formal requirements for the establishment of the complaint were checked by the Center and found to be in compliance with the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the Center Supplemental Rules for Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel accepts the Center checklist as evidence of proper compliance with the Policy, Rules, and Supplemental Rules.

3.5 On October 18, 2000, the Center transmitted notification of the complaint and commencement of the proceedings to Respondent via e-mail (complaint without attachments), facsimile (complaint without attachments), and courier mail (with enclosures).

3.6 On November 6, 2000, Respondent filed its response with the Center. On November 8, 2000, the Center transmitted notification to Respondent of its receipt of the Response to the complaint via e-mail.

3.7 On November 16, 2000, the Center invited the undersigned to serve as panelist in this administrative proceeding, subject to receipt of an executed Statement of Acceptance and Declaration of Impartiality and Independence ("Statement and Declaration"). On November 18, 2000, the undersigned transmitted by facsimile the executed Statement and Declaration to the Center.

3.8 On November 22, 2000, Complainant and Respondent were notified by the Center of the appointment of the undersigned sole panelist as the Administrative Panel (the "Panel") in this matter. The Center notified the Panel that, absent exceptional circumstances, it would be required to forward its decision to the Center by December 5, 2000.

3.9 After a full review of the complaint and response, the Panel found that neither party had submitted any evidence in support of their various allegations. On December 7, 2000, the Panel issued a procedural order inviting both parties to submit evidence in support of the allegations in their pleadings. The Panel provided the parties three weeks from the date of the order to comply, although neither party was required to submit further evidence.

3.10 The Panel received supplemental evidence from the Complainant on December 21, 2000, and from the Respondent on January 4, 2001. Due to the end of year holidays the Panel will accept Respondent's supplemental evidence even though it was submitted beyond the three week deadline.

The Panel has not received any further requests from Complainant or Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties. The proceedings have been conducted in English.

 

4. Factual Background

4.1 Complainant is a state chartered bank and trust company, incorporated in Delaware in 1991. Complainant advertises its services under the name and mark CHRISTIANA BANK & TRUST COMPANY on the Internet, the Wilmington, Delaware, Yellow Pages, and in periodicals.

4.2 Respondents are individuals doing business as World Think Tank, which claims to be the largest source of intellectual knowledge and contacts in over sixty nations.

4.3 Respondents registered the domain name <christianabank.com> on July 28, 1999.

4.4 Respondents admits that the domain name <christianabank.com> is not actively hosted.

 

5. Parties’ Contentions

A. Complaint

Complainant states in pertinent part:

"Complainant, not Respondents, has a legitimate interest in the domain name <christianabank.com> based on the undisputed fact that Complainant uses the domain name for its business and Respondents do not. Complainant is a state chartered bank and trust company, incorporated in Delaware in 1991. As set forth in its current Web site (http://www.christianatrust.com), the Bank was conceived nearly a decade ago to provide a full-range of banking services, including commercial and individual banking, asset management, trust services, mortgages and financial portfolios. A copy of the Bank's Web site is attached as Exhibit 'A' to the hard copy of this Reply. An explanation of the source of Complainant's tradename (from its Website), is attached collectively as Exhibit 'B' to the hard copy of this Reply."

"Complainant is listed in the Wilmington, Delaware, Yellow Pages under 'banks'. A copy of the applicable page of the 2000 Wilmington Yellow Pages is attached as Exhibit 'C' to the hard copy of this Reply. That Complainant's interests run the gamut of banking and related services, and not merely trust services, is demonstrated by the fact that its stock is traded on the OTC market under the symbol 'CBTD' (i.e., Christiana Bank & Trust Delaware). See Exhibit 'A'.

"Furthermore, Complainant widely advertises its full-range of banking services. A copy of one of the Bank's advertisements is attached collectively as Exhibit 'D' to the hard copy of this Reply. Accordingly, Complainant has established sufficient evidence that it has a legitimate interest in the domain name <christianabank.com>."

"Second, Respondents admit that they registered the domain name <christianabank.com> in bad faith. Specifically, in their response to the Complaint, Respondents 'acknowledge' that Complainant has used its sole name and descriptive trademark 'Christiana Bank & Trust Company' to market its banking and related services in Delaware and that that trademark has become well known throughout Delaware since the Bank's founding. A copy of Respondents' Response to the Complaint is attached as Exhibit 'E' to the hard copy of this Reply at & 14."

"Respondents registered the domain name <christianabank.com> in 1999, eight years after the Bank was founded. A copy of the <christianabank.com> registration statement from the Network Solutions WHOSIS Database is attached as Exhibit 'G' to the hard copy of this Reply. Second, Respondents reside only about 25 miles from Complainant's place of business. A copy of the relevant Mapquest Driving Directions is attached as Exhibit 'H' to the hard copy of this Reply. Third, as a result of Respondents' residing in the same 'media market' as Complainant, Respondents are obviously aware of the nature of Complainant's business practices."

"By their own admission then, Respondents acted in bad faith to 'acquire' Complainant's trademark which legitimately belongs to the Bank and not to Respondents. Accordingly, Complainant has established sufficient evidence that Respondents acted in bad faith in registering the domain name <christianabank.com>."

"Respondents have made no effort to use the domain name <christianabank.com> to offer goods or services. In their Response to the Complaint, Respondents 'acknowledge' that the ' [d]omain name is not actively hosted'. See Exhibit 'E' at & 17. Indeed, a visitor to the <christianbank.com> Web site will find the message: 'The page cannot be displayed'. A copy of the <christianabank.com> Web site registered by Respondents is attached as Exhibit 'I' to the hard copy of this Reply. Accordingly, Complainant has established sufficient evidence that Respondents have made no effort to use the domain name <christianabank.com> to offer goods or services."

"Finally, Respondents have offered no evidence that they have made any effort whatsoever to develop a Web site using the domain name <christianabank.com>. Complainant has provided ample evidence that it has made that effort."

"Complainant has acted to preserve a legitimate interest in the domain name, desires to use that name in good faith, and wishes to use it to market banking services through its eponymous domain address over the Internet, Respondents' only argument is that they are entitled to use the domain name until they receive some vague 'acceptable statement' from Complainant. See Exhibit 'E' at & 22."

B. Response

Respondent states in pertinent part:

"I am a gentle and compassionate man and live to help others. It is well documented that I have reserved domain names for many others because they had done something good for me in the past and, with my knowledge of the Internet, I would (because I knew they did not know how) register a domain name for them and give them this as a returned favor, not for money or spite."

"In the case of Robert Elder of Christiana Bank & Trust Company represented by Francis Pileggi. I registered www.ChristianaBank.com because he had not and 7 years ago, Mr. Elder was assigned by my Cancer Oncologist to be my "mentor" until the time (the Oncologists time) of my impending death. I only spoke with Mr. Elder twice but he was there for me and, since I did survive, I wanted to return the favor that he had probably (and indeed did) forgotten about."

"[C]omplainant uses and markets heavily the domain name <christianatrust.com> and the domain name <christianabank.com> would not be of any great gain to the complainant."

"[Complainant is using] Christiana Bank and Trust, not Christiana Bank. It is public knowledge there are other entities using Christiana (and in some cases) Christiana Bank in the United States and other parts of the world who have contacted us about the domain name <christianabank.com> in a non-hostile manner."

"It is now my intention to transfer the domain name <christianabank.com> without expense or gain to a humanitarian effort that uses "Christiana Bank" exclusively to promote goodwill and honorable international relations."

 

6. Discussion and Findings

6.1 The Uniform Domain Name Dispute Resolution Policy (the "Policy"), adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (with implementing documents approved on October 24, 1999), is addressed to resolving disputes concerning allegations of abusive domain name registration. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.

6.2 Paragraph 4(a) of the Policy sets forth three elements that must be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:

(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) Respondent’s domain name has been registered and is being used in bad faith.

In the administrative proceeding, the complainant must prove that each of these three elements are present.

6.3 Complainant asserts that it has a legitimate interest in the domain name <christianabank.com>. The Panel finds that the Complainant has provided sufficient evidence to establish it has common law rights in the mark CHRISTIANA BANK & TRUST COMPANY.

6.4 The next inquiry is whether <christianabank.com> is identical or confusingly similar to the mark CHRISTIANA BANK & TRUST COMPANY. The Complainant has failed to assert whether the domain name is identical or confusingly similar to its mark.

6.5 While the domain name <christianabank.com> obviously is not identical to Complainant's mark, the Panel does find that it is confusingly similar. The use of the term "confusingly similar" under the Policy is not the same as the concept of likelihood of confusion under trademark law. Motorola, Inc. v. NewGate Internet, Inc., WIPO D2000-0079. This element of the Policy is confined to a consideration of the disputed domain name and the trademark. Gateway, Inc. v. Pixelera.com, Inc., WIPO D2000-0109.

6.6 The dominant portion of Complainant's mark is CHRISTIANA BANK, which is identical to the domain name <christianabank.com>. This conclusion is bolstered by the Respondents’ admission that they registered <chritianabank.com> for Robert Elder of Christiana Bank & Trust Company, obviously thinking they were similar.

6.7 As the domain name <christianabank.com> is confusingly similar to the Complainant's mark, the Panel finds that the Complainant has satisfied its burden of proof as to paragraph 4(a)(i) of the Policy.

6.8 The Respondent, John David Lake, states that he registered <christianabank.com> for Robert Elder of the Christiana Bank & Trust Company because Mr. Elder had once counseled Mr. Lake in coping with being diagnosed with cancer. In his response, Mr. Lake argues that because he had good intentions when he registered the domain name he therefore has a legitimate interest in the domain name ("Good faith is a legitimate interest.")

6.9 Under Paragraph 4(c) of the Policy, any of the following circumstances, without limitation, shall demonstrate the respondents rights or legitimate interests in the domain name at issue:

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

6.10 It is clear that the Respondents cannot avail themselves of any of the circumstances set forth under Paragraph 4(c). In Exhibit 2 of the Respondents’ supplemental evidentiary submission, Respondent Lori Lake writes:

"When my husband searched for Christiana Bank domain name, nothing was found. Odd.., he checked for Christiana Bank & Trust Company, still no match.. After years of admiring Mr. Elder for his help during the Cancer crisis, my husband thought that if they did not have a web site, we could build one and he would finally be able to meet Mr. Elder. My husband then registered www.ChristianaBank.com in hopes that he and Mr. Elder would meet, become good friends and do business together." (emphasis added)

6.11 While the Respondents’ intentions may have been good, registering a domain name that corresponds to the name and mark of another on their behalf without authorization does not provide the Respondents with rights to and legitimate interests in the domain name.

6.12 As the Respondents do not have rights to and legitimate interests in the domain name <christianabank.com> the Panel finds that the Complainant has satisfied its burden of proof as to paragraph 4(a)(ii) of the Policy.

6.13 Paragraph 4(b) of the Policy lists several factors, without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In particular, paragraph 4(b)(i) states:

(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 the trademark 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.

6.14 As set forth, supra, Respondents admit that the domain name was registered, at least in part, so Respondents could build a web site for and meet and do business with the Complainant. The Respondents have basically registered the <christianabank.com> domain name in order to transfer it to the complainant, for valuable consideration, i.e., the cost of building a web site and/or doing other business with the Complainant.

6.15 From the record in this case, the Panel believes the Respondents had good intentions but those alone do not justify intentionally registering a domain name identical or confusingly similar to a name and trademark in which the Complainant has rights.

6.16 As the Respondents registered and used the domain name <christianabank.com> in bad faith as defined under the Policy, the Panel finds that the Complainant has satisfied its burden of proof as to paragraph 4(a)(iii) of the Policy.

 

7. Decision

As the Complainant, Christiana Bank & Trust Company, has established that the Respondents, John David Lake and Lori Lake d/b/a World Think Tank, have engaged in abusive registration of the domain name <christianabank.com> within the meaning of paragraph 4(a) of the Policy, the Panel orders that the domain name <christianabank.com> be transferred to the Complainant.

 


 

R. Eric Gaum
Sole Panelist

Dated: January 22, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2000/d2000-1212.html

 

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