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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The Bank of the Pacific v. WhoisGuard Protected

Case No. D2006-1110

 

1. The Parties

The Complainant is The Bank of the Pacific, of Aberdeen, Washington, United States of America, represented by Miller Nash, LLP, United States of America.

The Respondent is WhoisGuard Protected, of Westchester, California, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <thebankofthepacific.com> is registered with eNom, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 29, 2006. On September 14, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On September 14, 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 Respondent of the Complaint, and the proceedings commenced on September 18, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2006. The Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 11, 2006.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on November 17, 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 is a full service commercial bank with a wide array of personal and business products and services. Complainant has extensively used the mark BANK OF THE PACIFIC since as early as 1978 in connection with banking services. The word “THE” was added at the beginning of the mark in 1999. The marks have been used in interstate commerce since as early as August 2003. Complainant also operates a website linked to the domain name < thebankofpacific.com>.

In September 2005, Complainant discovered that the subject domain name was registered to a company named LaPorte Holdings, Inc. LaPorte’s website at the subject domain name featured links to other websites, the majority of which involved competing banking services. On September 15, 2005, Complainant sent a letter to LaPorte demanding that it transfer the domain name to Complainant. At the time of the letter, the domain name was registered with Name King.com, Inc. Shortly thereafter, counsel for Complainant entered into negotiations with counsel for LaPorte for the immediate transfer of the domain name. The domain name registration was cancelled and the “redemption” period was set to expire on December 4, 2005. When Complainant tried to register the domain name on December 4, 2005, it had already been registered by the Respondent. Respondent’s date of registration is 27 years after Complainant’s first use of its mark, and several years after Complainant first used the mark in interstate commerce. On March 1, 2006, Complainant sent a letter to Respondent demanding that the subject domain name be transferred to Complainant. Complainant did not receive any response to the letter.

 

5. Parties’ Contentions

A. Complainant

Based on Complainant’s research, Respondent appears to be a company whose business is to purposely conceal the identity of the true owner of a domain name. As stated on “www.namecheap.com”, Respondent is a service that prevents people from gaining access to a domain name owner’s address, phone number, and e-mail.

Respondent’s website located at the domain name is a series of links to websites that offer financial and banking services, as well as links to travel, home, business, entertainment, and “lifestyle” sites. Respondent’s website appears to divert users to third-party websites that offer financial and banking services, where Respondent is likely compensated every time a consumer clicks these links.

Complainant contends that the domain name is identical to Complainant’s trademark THE BANK OF THE PACIFIC, and practically identical to Complainant’s trademark BANK OF THE PACIFIC, that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name was registered and is being used in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy (the “Policy”) have been satisfied:

(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) the respondent has no rights or legitimate interests with respect to the domain name; and

(iii) the domain name has been registered and used in bad faith.

A. Identical or Confusingly Similar

The domain name in question <thebankofthepacific.com> is identical to the Complainant’s trademark THE BANK OF THE PACIFIC and virtually identical to Complainant’s trademark BANK OF THE PACIFIC. The domain name incorporates both Complainant’s marks in their entirety.

Accordingly, the Panel finds that Complainant has satisfied this element of Paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

The Panel finds that Respondent has no legitimate interests with respect to the domain name because the evidence in the record indicates that: (1) Respondent has not used the domain name in connection with a bona fide offering of goods or services; (2) Respondent is not making a legitimate noncommercial or fair use of the domain name, and (3) Respondent is not and has not been commonly known by the domain name. Respondent’s website is a series of links to websites that offer financial and banking services, as well as links to travel, home, business, entertainment, and “lifestyle” sites. Respondent itself offers no goods or services at the website associated with the disputed domain name. None of these links or sites show any use of the mark THE BANK OF THE PACIFIC or BANK OF THE PACIFIC in any way that would confer legitimate rights on Respondent. Respondent’s website appears to divert users to third-party websites that offer financial and banking services, where Respondent is likely compensated every time a consumer clicks these links. When a holder of a domain name that is confusingly similar to an established mark uses the domain name to divert Internet users to another’s competing website for commercial gain, such is neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under paragraphs 4(c) of the Policy.

There is no evidence indicating that Respondent has any rights or legitimate interests with respect to the domain name. Accordingly, Complainant has satisfied this element of Paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

The Panel finds that Respondent has registered and is currently using the subject domain name in bad faith because it has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s trademark. Because Complainant is known as THE BANK OF THE PACIFIC, a consumer could easily type the domain name that includes the words “the bank of the pacific” into his or her browser in search of Complainant’s website. The website linked to the disputed domain name is a series of links to websites that feature financial and banking services, many of which are in apparent competition with those of Complainant. In addition, the website apparently changes depending on what day a consumer enters the site. The Complainant’s trademark is prominently used in the domain name appearing as a bold heading on the website. This creates the impression that Complainant sponsors the Respondent’s website. Also, a consumer could be deceived into thinking that they could access their personal bank account by clicking on the “my account” section of the website.

Respondent has been found by numerous other UDRP panels to have registered and used other domain names in bad faith. See Lowen Corporation d/b/a Lowen Sign Company v. Henry Chan, WIPO Case No. D2004-0430, Kmart of Michigan, Inc. v. WhoisGuard Protected, Nat. Arb. Forum FA0509000569042, Lilly ICOS LLC v. WhoisGuard Protected, WIPO Case No. D2005-0478, Sanofi-Aventis v. WhoisGuard Protected, WIPO Case No. D2005-1267, Emirates v. WhoisGuard Protected, WIPO Case No. D2006-0433, WeddingChannel.com, Inc. v. WhoisGuard Protected, Nat.Arb.Forum FA0603000662309, Latin Telecomuniciones S.A. v. WhoisGuard, WIPO Case No. D2005-0380, Curtis Jackson v. WhoisGuard, WIPO Case No. D2006-0070 and Hoffman-LaRoche Inc. v. WhoisGuard, WIPO Case No. D2005-1288.

In this case, the Panel finds that Respondent has registered and is using the domain name 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 <thebankofthepacific.com> be transferred to the Complainant.

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Lynda J. Zadra-Symes
Sole Panelist

Dated: December 10, 2006