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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Safe Credit Union v. Network Marketing

Case No. D2006-0589

 

1. The Parties

The Complainant is Safe Credit Union, North Highlands, California, United States of America, represented by Moore, Brewer, Jones & Tyler, United States of America.

The Respondent is Network Marketing, P.O.Box W13210, St. John’s, Antigua and Barbuda.

 

2. The Domain Name and Registrar

The disputed domain name <safecu.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2006. On May 10, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On May 12, 2006, eNom 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 May 29, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 18, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 20, 2006.

The Center appointed Peter D. Siemsen as the sole panelist in this matter on July 5, 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

Complainant, Safe Credit Union, is a state-chartered credit union and non-profit corporation with principal business in North Highlands, California, U.S.A.

Safe Credit Union is the owner of trademarks SAFE CREDIT UNION and SAFE CREDIT UNION AND DESIGN in the U.S., registrations nos. 2093097 and 2294483 respectively. It also owns domain names <safecu.org>, <safefcu.org>, <safefcu.com> and <safefcu.net>.

Disputed domain name <safecu.com> was registered in the name of the Respondent with eNom, Inc. on June 29, 2004.

 

5. Parties’ Contentions

A. Complainant

- Complainant owns trademarks SAFE CREDIT UNION and SAFE CREDIT UNION AND DESIGN in the U.S., registrations nos. 2093097 and 2294483 respectively.

- Complainant has acquired common law rights in and to these marks through use since 1953.

- Complainant uses these marks to identify its credit union services, commercial and consumer lending services, including providing savings and checking accounts, certificates of deposit, home and business loans, credit cards and debit cards.

- Complainant has invested a large amount of money on marketing its online banking services and advertising its products and services over the Internet.

- Complainant owns the domain names <safecu.org>, registered on June 3, 1998, <safefcu.org>, registered on November 2, 1995, <safefcu.com>, registered on February 6, 2002 and <safefcu.net>, registered on February 6, 2002.

- Complainant’s website provides online banking services and financial information.

- Complainant has developed valuable goodwill and reputation in relation to its name and marks, which have acquired secondary meaning.

- The domain name <safecu.com> is confusingly similar to Complainant’s marks because it contains the element SAFE plus the element “cu” which is an acronym for “credit union”.

- Respondent has placed Complainant’s name and mark on its landing page for <safecu.com>, which provides a link to Complainant’s website.

- Respondent is using the domain name <safecu.com> for commercial gain for itself and other parties by directing users to other parties’ websites. Some of these websites belong to Complainant’s competitors.

- Complainant has not authorized the registration or use of the disputed domain name on any website.

- On April 13, 2006, Complainant sent an e-mail to Respondent demanding it to cease use of the domain name <safecu.com>, but Respondent did not reply to this e-mail.

- Respondent is not a credit union, so the use of the name “Safe Credit Union” on its website constitutes a misdemeanor under California Financial Code Section 14050.

- Respondent is not known as “Safecu” and does not offer financial services, although through its website it represents itself as offering such services.

- Respondent’s silence in relation to Complainant’s e-mail sent on April 13, 2006 tends to show that Respondent has no legitimate rights or interests in the domain name <safecu.com>.

- Respondent’s selection of the domain name <safecu.com> was intentional and has the purpose to benefit from Complainant’s fame and goodwill.

- Respondent does not use the domain name <safecu.com> in connection with a bona fide offering of goods or services; instead, Respondent offers a search engine for users to locate goods/services, some of which are competitive to services rendered by Complainant, without the Complainant’s endorsement. This shows that Respondent is not making a legitimate non-commercial use of the domain name <safecu.com>.

- Respondent chose the Complainant’s name and mark SAFE for its domain and is using Complainant’s full name and mark SAFE CREDIT UNION on its website to confuse and divert Internet traffic, to profit from Complainant’s name, mark and reputation by placing Complainant’s full name and mark on its landing page. Either Respondent himself or other parties are profiting from the use of the domain name <safecu.com>.

- Complainant believes that the domain name is used and registered in bad faith due to the following reasons: a) Respondent’s use of the domain name <safecu.com> is to create a likelihood of confusion with the Complainant’s mark; b) the purpose of the domain name <safecu.com> is to attract, for commercial gain, Internet users to Respondent’s website, generating profits to Respondent and others as a result of hits to the landing page; c) users that are familiar with Complainant’s name are likely to type in <safecu.com> when trying to locate Complainant’s website because SAFE is Complainant’s name and “cu” is an acronym for credit union; d) Complainant believes that Respondent registered the domain name <safecu.com> for the purpose of selling, renting or transferring the domain name to Complainant for valuable consideration because Respondent is not a credit union and has chosen the name of a credit union to offer financial services to the public.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

In the administrative proceeding each of the following provisions of Paragraph 4(a) of the Policy must be established by the Complainant:

(i) 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

(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) the Domain Name has been registered and used in bad faith.

A. Identical or Confusingly Similar

The Domain Name at issue is <safecu.com>.

Complainant is the title holder of the registered trademarks SAFE CREDIT UNION and SAFE CREDIT UNION AND DESIGN.

Although U.S. registrations nos. 2093097 and 2294483 for the above marks contain a disclaimer granting no exclusive right to the expression CREDIT UNION, they confer protection for the word SAFE and for the mark as a whole. Complainant is able to restrain competitors from using expression CREDIT UNION when it is used together with the word SAFE. Since the domain name <safecu.com> is formed by the word SAFE plus the initials of CREDIT and UNION the Panel can say that the domain name is confusingly similar to the Complainant’s mark and that the requirement of Paragraph 4 (a) (i) of the Policy has been met.

B. Rights or Legitimate Interests

Respondent uses the domain name <safecu.com> to identify a website that links to third parties’ websites that provide mainly financial information (loans, mortgages, online banking, credit, etc.) but some of them provide information on various matters such as travel, lifestyle, entertainment, etc.

The Panel did not find as alleged by Complainant any reference to Complainant’s mark and name on the landing page of <safecu.com> – it merely reads “safecu.com”.. Further, by checking some of the links provided in the website, the Panel did not detect a link to Complainant’s websites “safecu.org”, “safefcu.org”, “safefcu.com” and “safefcu.net”. There are links to Complainant’s competitors though.

According to Paragraph 4(c) of the Rules, Respondent has to demonstrate its rights or legitimate interests to the domain name by evidencing some circumstances, as for example: that it has used the domain name in connection with a bona fide offering of the services; that it has been commonly known by the domain name; that it has made a legitimate non-commercial or fair use of the domain name.

Respondent has not submitted any reply to the Complaint.

However in the absence of a response it is well established that the Complainant still bears the burden of establishing this element on a prima facie basis, at which point the burden of proof in refuting passes to the Respondent.

The evidence in the Complaint does not suggest the applicability of any of the three circumstances referred to above. For example, the website at the disputed domain name contains a number of what appear to be buttons or links to financial services such as for example “online banking”, “checking account”, “loans”, “account” and “login”. However, the site does not offer financial services. It merely provides what appears to be fairly generic financial information, along with a number of links to sites including competitors of the Complainant. Nor is there any information on the site indicating that the Respondent is in fact known by the name “safecu” or “safecu.com”, such as contact information indicating an identifiable entity by that name behind the website.

Accordingly, the Panel accepts Complainant’s contention that the Respondent is not known by the name “safecu”. The Panel also accepts the Complainant’s statement that it has not authorised the Respondent to use any of its marks incorporating the term “safe”. Nor does the Respondent appear to be making a bona fide offering of financial or other goods or services.

In view of the above, the Panel finds that the Complainant has made a prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this. Accordingly, the Panel finds for Complainant in relation to the first element of the Policy.

C. Registered and Used in Bad Faith

Complainant alleges that users that are familiar with Complainant are likely to type <safecu.com> when trying to locate Complainant’s website.

Considering that “Safe”, is the outstanding part of Complainant’s mark and name, and having regard to the way Complainant refers to itself in its website, the Panel believes that the users that have already visited the Complainant’s website and have had a contact with <safecu.org> may type <safecu.com>, assuming erroneously that this will lead to Complainant’s website as well.

Paragraph 4 (b)(iv) of the Policy indicates that one of the circumstances that characterizes bad faith is when Respondent is using the domain name for intentionally attracting for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s mark.

Having regard to the discussion in sections A and B above, the Panel concludes that “Safecu” is likely to be confused with Complainant’s mark SAFE CREDIT UNION, and Respondent is in all likelihood intending to attract Internet users to its website for commercial gain. Accordingly, the Panel concludes that the domain name <safecu.com> has been registered and used in bad faith in accordance with paragraph 4 (b)(iv) of the Policy.

 

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


Peter D. Siemsen
Sole Panelist

Dated: July 19, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0589.html

 

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