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WIPO Arbitration and Mediation Center



Comerica Incorporated v. Webserv LLC

Case No. D2005-1210


1. The Parties

Complainant is Comerica Incorporated, Detroit, Michigan, United States of America, represented by an internal representative.

Respondent is Webserv LLC, Roseau, Dominica.


2. The Domain Name and Registrar

The disputed domain name <commerica.com> (hereinafter, “Domain Name”) is registered with Fabulous.com.


3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 22, 2005. On November 23, 2005, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain name at issue. On November 25, 2005, Fabulous.com transmitted by email to the Center its verification response confirming that Respondent is listed as registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of 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”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 30, 2005. In accordance with the Rules, paragraph 5(a), the due date for the Response was December 20, 2005. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 21, 2005.

The Center appointed Mark Min-Jen Yang as the sole panelist in this matter on December 29, 2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.


4. Factual Background

Complainant registered a number of trademarks in association with banking services at the United States Patent and Trademark Office, including:

- COMERICA under No. 1,251,846 (on September 20, 1983); and

- COMERICA & Des. under No. 1,776,041 (on June 8, 1983)

(hereinafter referred to as the “Trademarks”).

Respondent registered the Domain Name with the Registrar on May 15, 2002.

5. Parties’ Contentions

A. Complainant

Complainant contends that the Domain Name is confusingly similar with its Trademarks, that Respondent has no legitimate interest in the Domain Name and that Respondent registered and uses the Domain Name in bad faith.

B. Respondent

Respondent did not reply.


6. Discussion and Findings

One requirement of fundamental due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, this Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence in the case file for this Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).

In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that a “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate”. Since Respondent has not submitted any evidence, the Panel must render its decision on the basis of the uncontroverted evidence supplied by Complainant.

The Panel finds that Complainant presented its contentions, arguments and evidence in a less than ideal way, occasionally leaving the Panel to make certain inferences, obvious as they may be. For example, in the paragraph bridging page 4 and page 5, the Complaint begins with its contention on paragraph 4(a)(ii) of the Policy but ends using arguments more appropriate for paragraphs 4(a)(iii) and 4(b). For another example, in the final full paragraph on page 5, the Complaint makes contentions and arguments appropriate for paragraph 4(a)(iii) but identifies them as supportive relative to paragraph 4(a)(ii). Nonetheless, the Panel has been able to draw out from the Complaint the appropriate contentions and arguments for the required analysis.

In accordance with paragraph 4(a) of the Policy, to succeed in this UDRP proceeding, Complainant must prove (A) that the Domain Name is identical or confusingly similar to a trademark in which it has rights, and (B) that Respondent has no rights or legitimate interests in respect of the Domain Name, and (C) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn below.

A. Identical or Confusingly Similar

Complainant contends that the Domain Name is confusingly similar to its Trademarks. The Complainant (by inference) contends that the addition of the additional “m” to its Trademarks in the Domain Name is not of any significance in law to avoid confusion. The Panel accepts Complainant’s contentions and concludes that the first requirement of the Policy is met.

B. Rights or Legitimate Interests

Complainant contends that Respondent has no rights or legitimate interests in the Domain Name. In particular, Complainant contends that it has not licensed or otherwise permitted Respondent to use any marks or words that incorporate or are confusingly similar with its Trademarks; and further that it would be difficult, perhaps impossible, for Respondent to use the Domain Name as the name of any business, product or service for which it would be commercially useful without violating Complainant’s rights. In other words, Complainant contends that Respondent cannot make a legitimate use of the Trademarks.

Respondent has provided no arguments of evidence of legitimate interests to counter Complainant’s contentions on this issue. By virtue of the legal status of the Trademarks as registered trademarks of Complainant and its contentions about its efforts in promoting the Trademarks and the size and success of its banking service in the United States of America, and by its contention that there is no business relationship with Respondent, Complainant argues that Respondent has no rights or legitimate interests in the Domain Name. The Panel, especially in the absence of any response from the Respondent, considers that the circumstances described in paragraph 4(c) of the Policy, for proof of legitimate interest by Respondent in the Domain Name, likely do not exist.

The Panel concludes that the second requirement of the Policy is met.

C. Registered and Used in Bad Faith

Complainant contends that Respondent registered and uses the Domain Name in bad faith.

Complainant contends (by inference) that Respondent registered the Domain Name in 2002 with knowledge of Complainant’s rights in its Trademarks (by then, having been registered for almost 10 years) and of its reputation with its Trademarks in the banking marketplace, and further contends that it is using the Domain Name to misleadingly divert Internet traffic to its own website away from Complainant’s website. The Panel accepts Complainant’s contentions, especially in the absence of any counter-arguments and evidence from Respondent.

The Panel concludes that the third requirement of the Policy is met.


7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <commerica.com>, be transferred to Complainant.

Mark Min-Jen Yang
Sole Panelist

Dated: January 11, 2006


Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1210.html


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