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Arbitration and Mediation Center
BBVA Banco Francés, S.A. v. BancoFrances.com, Inc.
Case No. D2003-0814
1. The Parties
The Complainant is BBVA Banco Francés, S.A. of Buenos Aires, Argentina, represented by Norberto Loza, of Buenos Aires, Argentina.
The Respondent is BancoFrances.com, Inc. of Miami, Florida, United States of America.
2. The Domain Name and Registrar
The domain name is <bancofrances.com> and the Registrar is Go Daddy Software, Inc., of Scottsdale, Arizona, United States of America.
3. Procedural History
A Complaint was submitted to the WIPO Arbitration and Mediation Center ("the Center") on October 13, 2003. On October 14, 2003, the Registrar verified the registration.
The Center determined that the Complaint contained deficiencies, and on October 24, 2003, it issued a Complaint Deficiency Notification.
On October 25, 2003, a revised Complaint was sent to the Center.
On October 27, 2003, the Center made a Second Request for Amendment of Complaint, and on October 29, 2003, the Center issued a Second Complaint Deficiency Notification.
On November 3, 2003, the Center made a further Request for Amendment to Complaint, and on November 7, 2003, it sent a Reminder of this Request.
On November 7, 2003, an Amendment to the Complaint was sent by the Complainant via e-mail to the Center, and on November 10, 2003, the Center received the hardcopy of the Amendment to Complaint.
On November 11, 2003, a Notification of Complaint and Commencement of Administrative Proceeding ("the Commencement Notification") was electronically transmitted to the parties indicating that a Response was due by December 1, 2003. Respondent was properly notified by email to the address of the owner who was also the administrative, billing and technical contact. In addition, hard copies were shipped by courier to the Respondent at the address indicated in the registration, which were received by the Respondent. No Response having been received, on December 3, 2003, the Center transmitted a Notification of Respondent Default by email.
On December 9, 2003, the Center sent a Notification of Panel Appointment appointing Mauricio Jalife Daher, who had previously submitted a Statement of Acceptance and Declaration of Impartiality and Independence. No further submissions were received.
4. Factual Background
After the Complainant’s assertions, supported by the documents enclosed as annexes to the Complaint, and undisputed by Respondent because of its default, the Panel finds the following:
BBVA Banco Francés, S.A. ("BBVA") is the owner of the "BANCO FRANCES" trademarks in Argentina, of which the first registration listed is for the mark BANCO FRANCES, registered in Argentina under registration number 1,802,590, which was filed for on August 21, 1997, and granted registration on August 17, 2000.
The disputed domain name was registered with Network Solutions on September 25, 1996, and parked on the BANCO FRANCES domain servers in the name of Banco Frances Del Rio de la Plata. It expired on September 23, 2003, date on which it was duly renewed by the Complainant.
The disputed domain was then transferred on October 1, 2003, to BancoFrances.com, Inc., through Go Daddy Software, Inc., and was left parked on the BANCO FRANCES domain servers. Currently, the domain displays the BBVA BANCO FRANCES website, and is directed to same. No evidence has been provided as to the document through which the authorization for this transfer was given, either by Go Daddy Software, Inc., despite the request from Network Solutions as losing Registrar, nor from the Respondent (in light of its Default).
The Respondent has failed to respond to the current Complaint.
5. Parties’ Contentions
BBVA BANCO FRANCES alleges that the domain name <bancofrances.com> is identical to its registered "BANCO FRANCES" marks, citing WIPO case law holding that confusion exists where there is identity with the distinctive aspects or dominant portions of the mark. The fame of the BANCO FRANCES mark is also cited as increasing the possibility of confusion.
BBVA BANCO FRANCES asserts that Respondent has no rights in the BANCO FRANCES name or mark under any of the criteria for rights and legitimate interests that are described in the UDRP Policy, and further, the Respondent has always used the Domain Name to point to the Complainant’s official website.
BBVA BANCO FRANCES also asserts that Respondent is acting in bad faith because (a) the Respondent has registered the Domain Name under a false identity in breach of Article 2(a) of the Policy and Section 18 of the contract with the registrar; and, (b) the Respondent has always used the Domain Name to point to the Complainant’s official website at Respondent’s sole discretion of changing the content of same at any time.
The Respondent has not submitted a response, and is thus in default.
6. Discussion and Findings
Section 4(a) of the UDRP Policy requires the Complainant to prove that each of three elements is present:
(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the domain holder has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
6.1 Identical or confusingly similar to a trademark or a service mark
The Panelist finds that the domain name <bancofrances.com> is confusingly similar to the mark "BANCO FRANCES," in light of the arguments and evidence given by the Complainant.
6.2 Rights or legitimate interests in the domain name
The Complainant has persuasively asserted that the Respondent has no rights or legitimate interests in the domain name. The Respondent has failed to file any evidence rebutting those assertions.
Furthermore, the use of the domain name by the Respondent is limited to being directed to the Complainant’s website, which gives further evidence of the lack of legitimate interests on the domain name by the Respondent.
Therefore, the Panel decides that the Respondent has no rights or legitimate interests in the domain name <bancofrances.com>.
6.3 Registration in bad faith
Complainant’s allegations with regard to the Respondent’s registration of the domain name in bad faith have been considered by the Panel. These allegations have not been contested by the Respondent because of his default.
Complainant’s trademarks are famous, and have evidently been known to Respondent when registering the contested domain name. Said domain name is highly unlikely to have been registered if it were not for Complainant’s trademarks.
Respondent’s registration of the domain name at issue may mean a possible risk for users of the Complainant’s website and the Complainant itself, as the information and services provided by the website, which is currently directed to the Complainant’s domain name servers, must be considered as confidential information, specifically the information related to user names and passwords for accessing online banking services to account holders of BBVA Banco Frances.
Further, and as it has been asserted by the Complainant, the Respondent has also obtained the registration for the <bancofrances.net> Domain Name, which is currently being sold on the Internet, which further evidences the bad faith of the Respondent with regard to "bancofrances" domains in the different variants.
The Panel therefore finds that the Respondent has registered and used the domain name at issue in bad faith.
The Panel has found that the domain name <bancofrances.com> is confusingly similar to the trademark 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 and used in bad faith.
Therefore, pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel requests that the domain name <bancofrances.com> be transferred to the Complainant, BBVA Banco Francés, S.A.
Dated: December 24, 2003