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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Keppel TatLee Bank Limited v. Lars Taylor
Case No. D2001-0168
1. The Parties
The Complainant is Keppel TatLee Bank Limited, a company incorporated in Singapore, having its registered office and principal place of business at 10 Hoe Chiang Road, #06-00 Keppel Towers, Singapore 089315, Singapore.
The Respondent is Lars Taylor whose current address is 2598 Macarthur RD stop 4-5 Monterey, CA 93944, USA.
2. The Domain Name(s) and Registrar(s)
The dispute concerns the domain name "keppelbank.com" (the said Domain Name) registered with Register.com (the Registrar) of 575 8th Avenue – 11th Floor New York, NY 10018, USA.
3. Procedural History
On January 31, 2001, the Complainant submitted a Complaint electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the Center) for a decision in accordance with the Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules) and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). On February 2, 2001, the Center acknowledged receipt of the said Complaint.
On February 6, 2001, the Complainant submitted the hardcopy of the same to the Center.
On February 5, 2001, the Center sent a Request for Registrar Verification to the Registrar.
On February 8, 2001, the Registrar, confirmed by facsimile with the Center that it was the Registrar of the said Domain Name and also that the current registrant of the said Domain Name was the Respondent.
On February 12, 2001, having found that the Complainant had satisfied the formal requirements of the Policy, the Rules and the Supplementary Rules, the Center sent the Notification of Complaint and Commencement of Administrative Proceeding (the Notification) by post/courier, facsimile and e-mail to the Respondent and transmitted electronically copies of the said documents to the Complainant. It also extended a copy of the Notification to the Internet Corporation for Assigned Names and Numbers (ICANN) and the Registrar. The said Notification set the formal date of the commencement of this administrative proceeding as February 12, 2001 and required the Respondent to submit a response to the Complainant within 20 calendar days from the date of receipt of the Notification, i.e. March 3, 2001, failing which the Respondent would be considered to be in default.
The Respondent sent an e-mail to the Center on February 22, 2001, to the effect that he was currently in the United States Military and had not received the hardcopy of the Complaint since it had been sent to the Respondent’s old home address, i.e. 422 W. Mistletoe #1 San Antonio, TX 78212, USA. He asked for a copy of the Complaint to be sent to his military address i.e. 2598 Macarthur RD stop 4-5, Monterey, CA 93944. The Center responded on the same day by dispatching another set of documents to the Respondent’s new address. The Respondent failed to file the response with the Center by March 3, 2001.
On March 7, 2001, the Center sent the Notification of Respondent Default to the Respondent and copied it to the Complainant via e-mail.
The Complainant elected to have the dispute decided by a single-member panel (the Panel). After receiving a Statement of Acceptance and Declaration of Impartiality and Independence from Mr. Hariram Jayaram, the Center appointed him to be the Panelist.
On March 14, 2001, the Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date to the Complainant and the Respondent and copied it to the Panel by e-mail. On the same day, the Center sent a Transmission of Case File to the Panel.
The Panel finds that the Center has discharged its obligations and responsibility under the Rules. The Panel will issue its Decision based on the Complaint, the Policy, the Rules and the Supplementary Rules, without the benefit of having received a response from the Respondent.
4. Factual Background
The Complainant is a licensed bank which operates a banking business in Singapore and has overseas branches in Hong Kong, Malaysia and Vietnam and representative offices in Beijing, Yangon, Ho Chi Minh City, Kuala Lumpur, Taipei, Bangkok and Jakarta. The Complainant also has a subsidiary, PT Bank Keppel TatLee Buana in Indonesia. The Complainant was incorporated in Singapore in 1959 under the name of Asia Commercial Banking Corporation Limited. In 1990, the Singapore Government-linked conglomerate, the Keppel Corporation Group acquired the Complainant and renamed it Keppel Bank of Singapore Limited. In 1993, the stock of the Complainant was publicly listed on the Stock Exchange of Singapore under the name KEPPEL BANK. In December 1998, the Complainant acquired another Singapore bank, Tat Lee Bank Limited, and it became known as Keppel TatLee Bank Limited which is its official name today. A survey carried out by Euromoney in June 2000 showed that the Complainant was the 5th largest bank in Singapore and the 241st largest bank in the world in terms of shareholders’ equity. Another survey conducted by Asiaweek for the Asiaweek Financial 500 showed that the Complainant had a shareholders’ equity of US$1,549,000,000 and total assets of US$14,548,000,000. Moody’s Investors Service gave it a rating of A2. Since 1990 the Complainant has offered banking products and services in Singapore, Malaysia, Indonesia, Vietnam, Myanmar, Taiwan and China under or by reference to the trademark"KEPPEL BANK", although the Complainant does not have any registered trademark for the words "KEPPEL BANK" per se. It has used the trademark KEPPEL BANK in various advertisement and promotional materials over the years. Since July 1999 the Complainant has offered various banking and financial services through the Internet via its website using the domain name <keppelbank.com.sg>. The Complainant also uses the trademark "KEPPEL" prominently for other financial services offered by its subsidiaries, such as stockbroking (by Keppel Securities Pte Ltd), finance company services (by Keppel TatLee Finance Limited), investment management services (by Keppel Investment Management Limited), insurance (by Keppel Insurance Pte Ltd), futures trading (by Keppel Bullion and Futures Pte Ltd), nominee services (by Keppel Bank Nominees Pte Ltd) and foreign exchange services (by Keppel American Express Foreign Exchange Services Pte Ltd).
On June 19, 2000, the Complainant received an e-mail from the Respondent (the Respondent’s e-mail) with the following message:
"Dear Keppel Tat Lee Bank,
About a month ago I registered the domain name KeppelBank.com. I intended to set up an online credit application / banking site that would be used to allow Chinese citizens the ability to obtain US credit card acccounts (sic). I thought this would be highly marketable after China entered the World Trade Organization. I intend to learn Chinese over the next few years and thought this was an excellent opportunity. A few days ago I tried to register KeppeleBank.com and found out it was registered to you. This makes my plans more difficult because we are marketing similar domains. Please contact me so we can resolve this.
I have also recieved (sic) an e-mail from a Malaysian businessman who would like to buy KeppelBank.com for $25,000 (100,000 Malaysian). If you already do business in the region under the name Keppel Tat Lee Bank, then it will be confusing and possibly misleading to my potential clients to use the name. Therefore, I cannot use it. Thus, I am going to sell it. I wanted to give you the oppurtunity (sic) to be involved in this before I committed to selling it to Mr. Chew (the Malaysian businessman). If you want the domain please notify me ASAP. If you own this domain it will not change your web address unless you want it to. Customers can simply type in KeppelBank.com.sg, or KeppelBank.com and be sent to your address. If you like, I can go ahead and have anybody who tries to connect to KeppelBank.com be directed to your site.
Please respond quickly, I do not want to lose a potential buyer unless you are interested in owning it. I need to respong (sic) to Mr. Chew’s offer soon so please call or e-mail me within the next 24 hours. My phone number is 011-210-736-2003. US phone number (210) 736-2003."
The sender-address of the e-mail and the phone number of the Respondent as indicated in the e-mail is the same as the one provided in the WHOIS database. A visitor to the website of the said Domain Name would see a message as follows:
"This internet domain name (KeppelBank.com) is for sale.
On Sale!!! $15,000 (US)
(I will raise the price back to $20,000 in a few weeks; so get it now!!)"
5. Parties’ Contentions
The contentions of the Complainant are that the said Domain Name registered by the Respondent is identical or confusingly similar to the trademark "KEPPEL BANK," in which the Complainant has rights; that the Respondent has no legitimate interests in the said Domain Name and that the said Domain Name has been registered and is being used in bad faith.
As the Respondent has not filed his Response, the Panel is not in a position to ascertain what his contentions are.
6. Discussion and Findings
6.1 Effect of Respondent’s Default
By paragraph 5(b)(i) of the Rules, it is expected of the Respondent to:
"[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…"
Paragraph 5 (a) of the Rules requires the Respondent to submit his response to the Center within twenty (20) days of the commencement of the administrative proceeding. The Center has by the Notification informed the Respondent that the last date for sending his response is March 3, 2001. The Respondent has failed to submit his response.
In view of the default it is open to the Panel, under paragraph (14)(b) of the Rules to
"draw such inferences …as it considers appropriate."
Such inferences include the right of the Panel to conclude as stated in Ogaan India Private Limited v. Mehboob Alam WIPO Case No. D2000-0720,
"that the Respondent has no evidence to rebut the assertions of the Complainant."
However before arriving at a decision, due heed must be paid to the following statement in Charles Jourdan Holding AG v. AAIM WIPO Case No. D2000-0403:
"In… the absence of a response to the Complainant’s allegations by the Respondent, the Panel must evaluate those claims in the light of the unchallenged evidence submitted by the Complainant."
6.2 Elements to be proven
Paragraph 4 (a) of the Policy envisages that to succeed, the Complaint must establish that:
i) the Respondent’s domain name is identical or confusingly similar to a trademark 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 Respondent’s domain name has been registered and is being used in bad faith.
The Complainant must prove that all the aforesaid three elements are present: (see Cortefiel, S.A. v. Miguel Garcia Quintas WIPO Case No. D2000-0140; Charles Jourdan Holding AG v. AAIM WIPO Case No. D2000-0403; and Ogaan India Private Limited v. Mehboob Alam WIPO Case No. D2000-0720).
6.3 Identical or Confusingly Similar
The Complainant claims rights in KEPPEL BANK. It has not registered these words as a trademark. However on account of long and substantial use of the said name in connection with its banking business, it has acquired rights under the common law.
6.4 Respondent’s Rights or Legitimate Interests in the Domain Name
Under paragraph 4 (c) of the Policy, the Respondent may demonstrate his rights and legitimate interests in the said Domain Name by showing:-
i) his use of, or demonstrable preparations to use, the said Domain Name or a name corresponding to the said Domain Name in connection with a bona fide offering of goods or services before any notice to him of the dispute; or
ii) he (as an individual, business, or other organization) has been commonly known by the said Domain Name, even if he has acquired no trademark or service mark rights; or
iii) he is making a legitimate noncommercial or fair use of the said Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue.
The Panel notes from the Respondent’s e-mail that the Respondent’s registration of the said Domain Name is for the purpose of setting up an online credit application or banking site. However, as to why the words KEPPEL BANK were chosen as the Second Level Domain (SLD), there is no legitimate reason. The Respondent’s e-mail suggests that the online credit application or banking site with the said Domain Name would be used to enable Chinese citizens to obtain US credit card accounts; his intended online activity would be highly marketable in China after its entry into the World Trade Organization; he himself had the intention to learn Chinese over the next few years. The Panel finds it odd that an entrepreneur aiming at an online site to attract Chinese citizens to apply for US credit card accounts would adopt the name of a well-known Singapore bank for its SLD. The Panel further notes that the Respondent, an individual is not commonly known by the said Domain Name. It is reasonable to infer that a banking site which has the said SLD in the said Domain Name, identical in all respects with the trademark of the Complainant and meant for credit or banking transactions, will mislead customers and divert them away from the Complainant.
6.5. Registration and Use in Bad Faith
By paragraph 4 (b) of the Policy, the circumstances indicating registration and use of a domain name in bad faith include the registration or acquisition of the domain name primarily for the purpose of selling or transferring the domain name registration to the Complainant, the owner of the trademark, for valuable consideration in excess of his documented out-of-pocket costs directly related to the said Domain Name.
The Respondent’s e-mail was to the effect that a third party was willing to buy the said Domain Name for US$25,000 but the Respondent was giving the option to purchase the said Domain Name to the Complainant. The message in the website of the Respondent also contained an offer to the public at large to sell the said Domain Name at US$15,000. The conduct of the Respondent brings home the fact that he has registered the said Domain Name primarily for sale for a consideration which surpasses the out-of-pocket costs normally incurred for the registration of a domain name. All these indicate bad faith on the part of the Respondent.
The Panel finds that the Complainant has proved each of the three elements of paragraph 4 (a) of the Policy. It requires the said Domain Name to be transferred to the Complainant.
Dated: March 28, 2001