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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Banca Intesa S.p.A. v. Maggie Leonard

Case No. D2006-0454

 

1. The Parties

The Complainant is Banca Intesa S.p.A., Milan, Italy, represented by Studio Legale Perani, Italy.

The Respondent is Maggie Leonard, Somersham, United Kingdom.

 

2. The Domain Name and Registrar

The disputed domain name <bancaintesaonline.com> is registered with Melbourne IT Ltd.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 11, 2006. On April 13, 2006, the Center transmitted by email to Melbourne IT a request for registrar verification in connection with the domain name at issue. On April 18, 2006, Melbourne IT 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 April 25, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 15, 2006. The Response was filed with the Center on April 27, 2006.

The Center appointed Pravin Anand as the sole panelist in this matter on May 22, 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.

 

4. Factual Background

The facts stated by the Complainant, Banca Intesa, are as follows:

- Banca Intesa is a leading Italian banking group and also one of the leading institutions in the European financial arena. It was incorporated in 1998, as a result of the integration between Cariplo and Banca Ambrosiano Veneto. In 2001, Banca Commerciale Italiana (known as “COMIT”) merged in to Banca Intesa and the new entity was named INTESABCI. From December 17, 2002, the Complainant has been named BANCA INTESA.

- The Complainant has more than 57,000 employees, 3,720 branches and city offices in Italy and all around the world and almost 13 million clients.

It has acquired trademark rights in BANCA INTESA and INTESA. Illustratively, registrations are as follows:

a) BANCA INTESA: Community trademark registration no. 779793, which was filed on March 24, 1998, and granted on November 15, 1999, in connection with the products of class 9, 16 and the services of classes 36, 38, 41 and 42.

b) BANCA INTESA: Italian trademark registration no. 818814, which was filed on December 18, 1997, and granted on June 20, 2000, in connection with the products of classes 9, 16 and services of classes 36, 38, 41 and 42.

c) INTESA: Community trademark registration no. 2803773, which was filed on August 7, 2002, and granted on November 17, 2003, in connection with services of class 36.

d) INTESA: United States trademark registration no. 2894502, which was filed on April 23, 2003, and granted on October 19, 2004, in connection with the services of class 36.

e) INTESA & device: Italian trademark registration no. 816033, which was filed on April 9, 1998, and granted on May 30, 2000, in connection with the products of classes 9, 16 and the services of classes 36, 38, 41 and 42.

From the above and also the evidence filed by the Complainant, it becomes apparent that the Complainant is a leading banking group in Italy and one of the most prominent banking institutions in the European Union.

 

5. Parties’ Contentions

A. Complainant

The Complainant’s contentions are summarized briefly hereunder:

1. The Complainant has rights in the trademark BANCA INTESA and INTESA, which are confusingly similar to the domain name <bancaintesaonline.com>. Moreover, the Respondent’s domain name is very similar to the address for Banca Intesa’s official web site at “www.bancaintesa.it”, which is confusingly similar to the disputed domain name <bancaintesaonline.com>.

2. The Respondent does not have any rights or legitimate interest in the domain name as:

- The domain name does not correspond to a trademark registered in the name of the Respondent, Maggie Leonard.

- The Complainant has a worldwide trademark watching service on the words BANCA INTESA and INTESA and no trademark covering the words BANCA INTESA or INTESA, in the name of the Respondent, has been detected.

- The domain name does not correspond to the business name of the Respondent and, according to the Complainant’s knowledge, Maggie Leonard is not commonly known as ‘BANCAINTESAONLINE’.

3. The domain name has been registered and is being used in bad faith as:

- The Respondent has attempted to attract Internet users, for commercial gain, to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website.

- Even though the relative web page is under construction, several WIPO decisions stated that, in particular circumstances, even the “passive holding” of a domain name may represent a registration and use in bad faith.

- It is evident that the Respondent registered the disputed domain name with the “phishing” purpose to induce and divert the Complainant’s legitimate customers to the Respondent’s website in order to steal money, which is not only a case of bad faith registration but also a criminal activity, as stated by several decisions.

- There is no other possible legitimate use of <bancaintesaonline.com>.

- The Respondent has engaged in abusive domain name registration and use.

B. Respondent

The Respondent’s contentions are summarized briefly hereunder:

Maggie Leonard has no association with the domain name in question. She has never heard of or registered the domain name <bancaintesaonline.com>. She is a victim of bank fraud and a phishing scam. She has informed Yahoo and also the Cambridgeshire Constabulary . All documents are now in the hands of P.C. 1993 Chamberlain of the Cambridgeshire Constabulary Force Headquarters.

 

6. Discussion and Findings

The Respondent’s contentions are an admission that a wrong has been done in her name, although she is not a party to it. Although the Panel has noted the Respondent’s contentions, it is not necessary for the Panel to decide whether she was involved or not or whether the contentions raised by her are correct or not. By these admissions alone, the domain name <bancaintesaonline.com> ought to be transferred to the Complainant, but for the purpose of satisfying the ingredients of paragraph 4 of the Policy, this Panel will look at the three elements even if the Respondent’s contentions are taken to be correct.

The Complainant has to prove each of the following elements:

1) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

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

3) The domain name has been registered and used in bad faith.

In the case of a default by a party, paragraph 14 of the Rules prescribes that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or a requirement, under the Rules, the Panel shall draw such inferences there from, as it considers appropriate.

Accordingly the Panel finds that:

A. Identical or Confusingly Similar

The Complainant has exclusive right in the trademark BANCA INTESA and INTESA. Moreover, the Respondent’s domain name is very similar to the address of the Complainant’s website at (“www.bancaintesa.it”), which is also connected to the domain name <intesaonline.it>, almost identical to the domain name <bancaintesaonline.com>.

Here, the sole difference is the presence of the prefix “ONLINE”, which is devoid of any distinctive power. Internet users will pay little or no regard as to the term “online” when comparing it to the Complainant’s trademark.

The addition of a generic term to a trademark is generally insufficient to negate the likelihood of confusion with the mark. See United Feature Syndicate v. All Business Matters, Inc. and Dave Evans, WIPO Case No. D2000-1199.

In fact, it is likely to strengthen the risk of confusion insofar as the consumer may think that it constitutes a variation of the trademark BANCA INTESA owned by the Complainant. See Prada S.A v. Danielle Terraglia, WIPO Case No. D2004-0870.

Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.

B. Rights or Legitimate Interests

The Complainant has established a prima facie case that the Respondent, has no rights or legitimate interest in the impugned domain name as:

- The Complainant has a worldwide trademark watching service on the words BANCA INTESA and INTESA and no trademark covering the words BANCA INTESA or INTESA in the name of the Respondent has been detected.

- Lastly, from the evidence, it is clear that the disputed domain name does not correspond to the business name of the Respondent and neither is the Respondent commonly known as “BANCAINTESAONLINE”.

As the Respondent has not put forward any evidence to rebut the Complainant’s prima facie showing, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.

C. Registered or used in bad faith

The Complainant has advanced grounds for the Panel to ascertain that the impugned domain name is registered and is being used in bad faith:

- It has been contended by the Complainant that the domain name at issue was registered and is being used in bad faith to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the domain name.

- Even though the domain name <bancaintesaonline.com> is not connected to any web site (as the relative web page is under construction), even “ passive holding” may represent a registration and use in bad faith under particular circumstances which are as follows:

a) The Complainant’s trademark has a strong reputation and is widely known.

b) The Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name.

c) The Respondent has taken active steps to conceal its true identity.

d) The Respondent has actively provided, and failed to correct, false contact details, in breach of its registration agreement.

e) It is not possible to conceive of any plausible actual or contemplated active use of domain name by the Respondent that would not be illegitimate.

See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

- No other possible legitimate use of <bancaintesaonline.com> could be inferred. The sole further aim of the Respondent might be to resell the domain name at issue to the Complainant, which represents in any case, evidence of registration and use in bad faith.

The Panel finds that the Respondent has attempted to attract for commercial gain visitors to it’s website by creating a likelihood of confusion with the Complainant’s trademark, and that passive holding of the domain name amounts to use in bad faith in the present case.

The Panel therefore finds that the domain name has been registered and used in bad faith.

 

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, <bancaintesaonline.com>, be transferred to the Complainant.


Pravin Anand
Sole Panelist

Dated: June 6, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0454.html

 

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