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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Australia and New Zealand Banking Group Limited v. Bashar Ltd

Case No. D2007-0031

 

1. The Parties

The Complainant is Australia and New Zealand Banking Group Limited, Melbourne, Australia.

The Respondent is Bashar Ltd, Al Hasakah, Syrian Arab Republic.

2. The Domain Name and Registrar

The disputed domain name <anzsupport.com> is registered with EstDomains, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 10, 2007. On January 11, 2007, the Center transmitted by email to EstDomains, Inc. a request for registrar verification in connection with the domain name at issue. On January 11, 2007, EstDomains, Inc. 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on February 20, 2007. The Center verified that the Complaint, together with the amendment to 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 February 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 19, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 20, 2007.

The Center appointed Mr. P-E H Petter Rindforth as the sole panelist in this matter on March 28, 2007. 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 Administrative Panel shall issue its Decision based on the Complaint, the Policy, the Rules, the Supplemental Rules, and without the benefit of any Response from the Respondent. The case before the Panel was conducted in the English language.

4. Factual Background

The Complainant is one of Australia’s largest banking institutions and the number one bank in New Zealand, tracing its origins to over 150 years ago. The name “ANZ Bank” was first adopted by one of it’s the Complainant’s predecessors in 1951, and this abbreviation has been used continously since then.

As of September 30, 2005, the Complainant has over 5 million customers worldwide, 1,200 offices worldwide, employed over 30,000 people and held assets of around AUD$ 259 billion.

The Complainant is the owner of a number of Australian trademarks in International Class 36, incorporating the word ANZ, such as No. 327 615 ANZ BANK (filed on February 1, 1979), No. 327 616 ANZ BANKING GROUP, No. 813 667 ANZ (figurative), as well as registrations in other jurisdictions including the United States and European Union.

The Complainant has operated its website at <anz.com> since 1996, offering Internet-based banking services since 1999.

The Complainant sent a letter of demand by registered post and email to the Respondent on November 28, 2006, but no response was received, except for a email “mail delivery failure” message.

The Respondent registered the domain name on November 21, 2006. No detailed information is known about the Respondent’s business activities, apart from what is contended below by the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant states that, in addition to its registered trademark rights, ANZ enjoys common law rights due to the significant reputation and goodwill associated with the ANZ name.

The Complainant argues that the disputed domain name is identical to, or confusingly similar with, the ANZ registered trademarks (above) and the common law names ANZ BANK, ANZ and ANZ INTERNET BANKING. The addition of the word “support” suggests that the domain name is used in the course of, or in relation to support services offered by the Complainant.

The Respondent has no right or legitimate interest in the domain name, as <anzsupport.com> is currently inactive. The domain name was previously used for the purpose of “phishing”. Futhermore the Respondent has failed to respond to the letter of demand sent by the Complainant on November 21, 1999.

Accordingly, there is no evidence of the Respondent’s legitimate use, or preparations thereto, at the time of the filing of the Complaint. Further, the Complainant argues that the Respondent ought to be deemed to have constructive knowledge of the Complainant and its trademark ANZ, as they are known worldwide and registered many years before the registration of <anzsupport.com>.

Finally, the Complainant states that the disputed domain name is registered and used in bad faith, as:

- The Respondent did not respond to the November 21, 1999, letter of demand

- The domain name has been used for the purpose of phishing

- The Respondent has constructive knowledge of the ANZ trademark and its reputation, proved by the fact that the Respondent previously used the domain name for a website that replicated the Complainant’s site on “www.anz.com”

- The Respondent has no rights or legitimate interest in the domain name, and

- The Respondent has registrered <anzsupport.com> to prevent the Complainant from using its trademark in a domain name.

The Complainant requests, in accordance with paragraph 4(i) of the Policy, that the Panel issue a decision that the domain name be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(i) that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

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

A. Identical or Confusingly Similar

The Complainant is the oldest such registration was filed in 1979owner of a number of trademark registrations for the trademark ANZ – figurative and or in combination with the descriptive words “bank”, “banking group”, etc.

The Complainant further claims to have common law rights in the ANZ trademark, through its longstanding and worldwide use – having continnously used the abbreviation ANZ for banking services since 1951.

The Panel concludes that the Complainant has registered trademark rights in the ANZ name, and – referring to the long and extensive use – that the Complainant also has established common law rights in ANZ.

The relevant part of the domain name for purposes of confusing similarity is “anzsupport”. This term consists of the Complainant’s trademark with the addition of the generic word “support”. As stated in many UDRP cases, the addition of a generic term does not necessarily distinguish a domain name from a trademark (see Banco Bilbao Vizcaya Argentaria, S.A. v. X company, WIPO Case No. D2005-0289, regarding the addition of the term “support”, see also Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627; Australia and New Zealand Banking Group Limited v. Anz Gropus Online, WIPO Case No. D2006-0097).

As ruled by the panels in the two latter decisions, the additional generic word may even add to the confusing similarity. The word “support” indicates an additional service related to the trademark ANZ.

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

B. Rights or Legitimate Interests

The Respondent is apparently not an authorized agent or licensee of the Complainant and has no other permission from Complainant to apply for any domain name incorporating the trademark ANZ.

By not submitting a formal Response, the Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interest in the domain name.

A respondent does not have rights or legitimate interests as such when it reproduces someone else’s trademark in a domain name without the authorization of the trademark’s owner.

The Respondent appears to have used the corresponding website for “phishing”. This is a form of Internet fraud that aims at stealing valuable information from visitors to the website and has become a serious problem for the financial industry worldwide (see Grupo Financiero Inbursa, S.A. de C.V. v. Inbuirsa, WIPO Case No. D2006-0614). Such use cannot constitute a bona fide use of the domain name pursuant to paragraph 4(c)(i) of the Policy.

The Panel therefore concludes that the Respondent has no rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

According to the information given by the Complainant (Supported by Annex 6 of the Complaint), the disputed domain name has been used for the purpose of “phishing” (recipients of an e-mail were encouraged to click on a link which directed them to a website hosted at <anzsupport.com> and then were requested to provide various customer details in relation to accounts held with the Complainant). The domain name was registered on November 21, 2006, and the use of the website for phishing was evident two days later, on November 23, 2006.

The Panel finds it most likely that the domain name was created, registered and used by the Respondent in an intentional attempt to benefit from the goodwill of the Complainant’s trademark for financial gain. (See Grupo Financiero Inbursa, S.A. de C.V. v. Inbuirsa, WIPO Case No. D2006-0614 stating that “[phishing] is a compelling indication both of bad faith registration and of use under paragraph 4(b)(iv).” See also CareerBuilder, LLC v. Stephen Baker, WIPO Case No. D2005-0251, “The Panel agrees with the Complainant that the Respondent’s motive must be to somehow cash in on the personal data thus obtained. This is a violation of the bad faith registration and use provisions of the Policy at paragraph 4(b)(iv).”

Furthermore, the fact that the Respondent submitted false contact information to the registrar (e-mail could not be delivered) is a further indication of bad faith. See Forte Communications, Inc. v. Service for Life, WIPO Case No. D2004-0613.

This Panel concludes that the disputed domain name was both registered and used in bad faith, and that the Complainant has succeeded in proving the three elements within paragraph 4(a) 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, <anzsupport.com> be transferred to the Complainant.

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P-E H Petter Rindforth
Sole Panelist

Dated: April 11, 2007