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and Mediation Center
Finter Bank Zьrich v. Isaac Allotey-Pappoe
Case No. D2006-0243
1. The Parties
The Complainant is Finter Bank Zьrich, Zьrich, Switzerland, represented by CMS von Erlach Henrici, Switzerland.
The Respondent is Isaac Allotey-Pappoe, Accra, Ghana.
2. The Domain Name and Registrar
The disputed domain name
<finterswis.com> is registered with The NameIT Corporation d/b/a Aitdomains.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on February 27, 2006. On February 28, 2006, the Center transmitted by email to The NameIT Corporation d/b/a Aitdomains.com a request for registrar verification in connection with the domain name at issue. On March 1, 2006, The NameIT Corporation d/b/a Aitdomains.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the 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 the Respondent of the Complaint, and the proceedings commenced on March 3, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 23, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 28, 2006.
The Center appointed Edoardo Fano as the Sole Panelist in this matter on April 4, 2006. 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.
The Panel has not received any requests from the Complainant or the 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 (taking note of the Respondent’s default in responding to the Complaint).
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent”. Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondent’s response.
The language of the proceeding is English, being the
language of the Registration Agreement.
4. Factual Background
The Complainant is Finter Bank Zьrich, a well-known private banking institution in Switzerland.
Among others, the Complainant is the owner of the following trademark registrations:
- Swiss registration for FINTER BANK ZЬRICH No. P-418617
- International registration for FINTER BANK ZЬRICH No. 645.522
The Complainant’s trademark rights in the wording FINTER BANK ZЬRICH associated with its banking and financial services dates back to 1995.
domain name <finterswis.com> was registered on January 14, 2006. It pointed
to a website which is an identical copy of the Complainant’s website,
apart from the contact details.
5. Parties’ Contentions
The Complainant states that the disputed domain name <finterswis.com> is identical and confusingly similar to its trademark FINTER BANK ZЬRICH, with the addition of the suffix “swis”, a mere geographic description with a spelling error (“swis” instead of “swiss”).
Moreover, the Respondent has no rights or legitimate interests in respect of the domain name at issue since it is neither a licensee of the Complainant nor otherwise allowed to use the trademark FINTER BANK ZЬRICH and the Respondent is not commonly known by the domain name and is not using the domain name in question in connection with a bona fide offering of goods/services.
On the contrary, by using the misleading domain name <finterswis.com> and copying the content of the Complainant’s website, the Respondent tries to misleadingly confuse and divert consumers, having registered and using the disputed domain name in bad faith.
In fact, the Respondent’s website corresponding to the disputed domain name is not a real bank, but simply part of a scheme in order to confuse and divert the customers of the Complainant using its trademark FINTER BANK ZЬRICH.
The Complainant further contends that the Respondent’s website was set up to facilitate “advance fee fraud”, attaching to the Complaint an email with a deposit slip sent by the email address email@example.com to a recipient as an example of such a scheme, that is used “to convince a victim that they are going to receive a large reward in return for little or no effort on their part: once the victim is ‘hooked’, the fraudster will gradually reveal various fees that must be paid before the victim can access the fortune that they believe is waiting for them”.
The website “www.finterswis.com” is also listed as a “fake bank” in the website “www.aa419.org”, an international community of individuals dedicated to fighting fraudulent websites.
The Respondent did not reply to the Complainant’s contentions and is in default: no exceptional circumstances explaining the default have been put forward.
A respondent is not obliged
to participate in a proceeding under the Policy but if it fails to do so, asserted
facts may be taken as true and reasonable inferences may be drawn from the information
provided by the complainant, in accordance with paragraph 14(b) of the
Rules (see also Reuters Limited v. Global Net 2000, Inc., WIPO
Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy, WIPO
Case No. D2003-0109; SSL International plc v. Mark Freeman, WIPO
Case No. D2000-1080; Alta Vista Company v.
Grandtotal Finances Limited et al., WIPO
Case No. D2000-0848).
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three tests which the Complainant must satisfy in order to succeed:
(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 has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
As far as the first of these tests is concerned, the Panel finds that the Complainant is the owner of the trademark FINTER BANK ZЬRICH both by registration and acquired reputation and that the disputed domain name <finterswis.com>is confusingly similar to the trademark FINTER BANK ZЬRICH.
Regarding the addition
of the misspelled geographic term “swis”, the Panel notes that it
is now well established that the addition of generic terms to a domain name
does not necessarily distinguish the domain name from a trademark (see, e.g.,
Aventis Pharma S.A., Aventis Pharma Deutschland GmbH v. Jonathan Valicenti,
WIPO Case No. D2005-0037, Red Bull
GmbH v. Chai Larbthanasub, WIPO Case No. D2003-0709,
America Online, Inc. v. Dolphin@Heart, WIPO
Case No. D2000-0713). The addition of the term “swis” does not
prevent the disputed domain name from being confusingly
similar to the Complainant’s trademark, in particular as the Complainant’s
country of origin and main place of business is Switzerland.
It is also well accepted
that a top-level domain, in this case “.com”, is to be ignored when
assessing identity of mark and domain name (see, e.g., VAT Holding AG v.
vat.com, WIPO Case No. D2000-0607).
The Complainant has therefore met its burden of proving that the domain name at issue is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Respondent has failed to file a Response in accordance with the Rules, paragraph 5.
The Complainant has established a prima facie case that the Respondent has no right or legitimate interest in the domain name. The Complainant has stated that the Respondent is not a licensee of the Complainant and has not otherwise been authorized by the Complainant to use its trademark. The Respondent also does not appear to be known by the name “finterswis”. Further, the Panel does not find that the domain name is being used for a legitimate noncommercial or fair use or, as discussed below, that the domain name is used in connection with a bona fide offering of goods or services.
The prima facie case presented by the Complainant is enough to shift the burden of proof to the Respondent to demonstrate that it has a right or legitimate interest in the domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in using the disputed domain name.
The Panel therefore finds that the Policy, paragraph 4(a)(ii), has been satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has 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 its documented out-of-pocket costs directly related to the domain name; or
(ii) that the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) that the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, the Respondent had intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
As evidenced by the content of the Respondent’s website at the address “www.finterswis.com”, an identical copy of the Complainant’s website at the address “www.finter.ch”, the Respondent is definitely aware of the existence of the Complainant as well as of the Complainant’s activities.
The Panel is of the opinion that the disputed domain name was registered and used in bad faith. Specifically, the domain name was registered and has been used in order to fraud Internet users by diverting them and gaining access to user names and passwords of the Complainant’s clients through mistaken login to the Respondent’s website.
In fact the Respondent’s
use of the disputed domain name falls indeed within the meaning of “phishing”,
“a form of online identity theft that uses spoofed emails designed to
lure recipients to fraudulent websites which attempt to trick them into divulgating
personal financial data such as credit card numbers, account usernames and passwords,
social security numbers, etc.: by hijacking the trusted brands of well-known
banks, online retailers and credit card companies, data suggests that phishers
are able to convince recipients to respond to them. As a result of these scams,
an increasing number of consumers are suffering credit card fraud, identity
theft, and financial loss” (see, e.g., La Caixa d’Estalvis
I Pensions de Barcelona v. N/A, WIPO Case
No. D2005-0601, Waterman, S.A.S. v. Brian Art, WIPO
Case No. D2005-0340, CareerBuilder, LLC v. Stephen Baker, WIPO
Case No. D2005-0251, Halifax plc v. Sontaja Sunduci, WIPO
Case No. D2004-0237, Ansbacher & Co Limited v. Mike Mc Cain,
WIPO Case No. D2005-0955, Zurich Insurance
Company v. Shi Wang, WIPO Case No. D2005-0712,
Banca di Roma S.p.A. v. Overlord Designs Inc., WIPO
Case No. D2006-0123, Bayshore Bank & Trust (Barbados) Corporation
v. Motschh Ivan, WIPO Case No. D2005-0011,
Banco Bilbao Vizcaya Argentaria, S.A. v. X Company, WIPO
Case No. D2005-0289, and, regarding the same trademark as the one at issue,
Finter Bank Zьrich v. N/A, Charles Osabor, WIPO
Case No. D2005-0871).
The evidence is that the Respondent not only adopted a confusingly similar domain name, but also used the trade dress of the Complainant’s website, seeking to attract Internet users to its website by creating confusion between its website and the Complainant’s website.
Considering the above,
the Panel finds that the Complainant has presented sufficient evidence to satisfy
its burden of proof with respect to the issue of whether the Respondent has
registered and used the disputed domain name in bad faith.
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 <finterswis.com> be transferred to the Complainant, namely to Finter Bank Zьrich.
Dated: April 18, 2006