The Complainant is ZB, N.A., a national banking association, dba Zions First National Bank of Salt Lake City, Utah, United States of America (“USA” or “United States”), represented by TechLaw Ventures, PLLC, USA.
The Respondent is Yinsi Baohu Yi Kai Qi (Hidden by Whois Privacy Protection Service) of Chengdu, Sichuan, China / Jin Dong Li, Li Jin Dong of China.
The disputed domain name <zionsbabk.com> (“Disputed Domain Name”) is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 14, 2017. On September 15, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 19, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 20, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on September 22, 2017.
On September 20, 2017, the Center transmitted an email in English and Chinese regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on the same day. The Respondent did not comment on the language of the proceeding by the specified due date.
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” or “UDRP”), 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on September 26, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 16, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 17, 2017.
The Center appointed Kar Liang Soh as the sole panelist in this matter on October 24, 2017. 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 Complainant has been using the trademark ZIONS since 1891 and the trademark ZIONS BANK since 1992 in relation to various financial services. The Complainant has registered the following trademarks:
|
Trademark |
Jurisdiction |
Trademark No. |
Registration Date |
|
ZIONS BANK |
United States |
2,381,006 |
August 29, 2000 |
|
ZIONSBANK.COM |
United States |
2,531,436 |
January 22, 2002 |
|
ZIONS |
United States |
2,380,325 |
August 29, 2000 |
The Complainant’s parent company, Zions Bancorporation, is the registrant of the domain name <zionsbank.com>. The domain name was registered on July 5, 1995 and the Complainant advertises and offers its banking services under the domain name.
The Respondent is an individual based in China. Very little information about the Respondent beyond the WhoIs information of the Disputed Domain Name is available.
The Disputed Domain Name was registered on August 22, 2017. On or before September 14, 2017, the Disputed Domain Name resolved to a website. The website displayed the words “Zions Bank” in its header and presented purported hyperlinks described using financial terms.
The Respondent’s identity was hidden behind a privacy service and was only revealed after these proceedings were commenced. The facsimile and address details of the Respondent and the privacy service appears to be invalid. Attempts by the Center to notify the proceedings via these avenues were unsuccessful.
The Complainant contends that:
1) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. It wholly incorporates the trademark ZIONS, with the exception that the letter “n” in the word “bank” was replaced with “b”. The letters “n” and “b” are adjacent keyboard letters. The Disputed Domain Name also includes the dominant part of the trademarks ZIONS BANK and ZIONSBANK.COM;
2) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. There is no evidence of the Respondent’s use or demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services. The Respondent is not commonly known by the Disputed Domain Name. The Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name. The Respondent is not a licensee of the Complainant’s trademarks and has not otherwise obtained authorization to use the Complainant’s trademarks; and
3) The Disputed Domain Name was registered and is being used in bad faith. The use of virtually identical or similar marks indicates that the Disputed Domain Name was registered primarily for the purpose of disrupting the business of the Complainant and to exploit the goodwill of the Complainant by diverting its customers to the Respondent’s website for commercial gain or malicious purposes. The Respondent also knew or should have known about the existence of the Complainant’s trademarks. The Respondent’s website posts pay-per-click advertising links on an automatically generated basis.
The Respondent did not reply to the Complainant’s contentions.
The registration agreement of the Disputed Domain Name is in Chinese. As such, the language of the proceeding by default is Chinese. The Complainant has requested that English be adopted as the language of proceeding instead of Chinese. Pursuant to paragraph 11(a) of the Rules, the Panel having reviewed the circumstances of the case, hereby determines that English shall be the language of the proceeding. The following factors were of particular note to the Panel:
a) The Complainant is based in the United States, conducts its business in English and is not conversant in Chinese;
b) The Respondent has not filed a Response;
c) The Respondent has not objected to the Complainant’s language request;
d) The website resolved from the Disputed Domain Name is entirely in English;
e) No procedural benefit would be achieved be requiring the Complainant to submit a Chinese-language Complaint, and in fact, would likely cause delay to the proceeding; and
f) The Complainant would be put to unnecessary burden should the Complainant be required to re-submit the Complaint in Chinese.
In order to succeed in this proceeding, the following limbs of paragraph 4(a) of the Policy must be established:
a) The Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights;
b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
c) The Disputed Domain Name was registered and is being used in bad faith.
Based on the trademark registrations, the Complainant clearly owns rights in the trademarks ZIONS, ZIONSBANK, and ZIONSBANK.COM. The Disputed Domain Name incorporates the trademark ZIONS in its entirety, with the only difference being the suffix “babk”. Although the letter combination “babk” is not a meaningful word, it is an obvious typographically misspelling of the word “bank”. The QWERTY keyboard layout is so popularly used that the Panel has no hesitation taking judicial notice of the fact that the keys for the letters “b” and “n” are adjacent to each other on a QWERTY keyboard. The Panel agrees with the Complainant that the Disputed Domain Name is confusingly similar to the trademark ZIONSBANK.
Moreover, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”) has documented the consensus opinion of past panels’ position that a domain name consisting of a common, obvious or intentional misspelling of a trademark is considered confusingly similar to the trademark (see also Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775 and Sanofi v. Domains By Proxy, LLC / domain admin, WIPO Case No. D2013-0368). The Panel echoes the consensus. Accordingly, the first limb of paragraph 4(a) of the Policy is satisfied.
The Complainant has asserted that the Respondent does not have any licence or authorisation to use any of the Complainant’s trademarks. There is no evidence that the Disputed Domain Name is used by the Respondent for any bona fide offering of goods and services. There is also no evidence that the Respondent is commonly known by the Disputed Domain Name. The adoption of the Disputed Domain Name as a typographical misspelling of the trademark ZIONSBANK is unmistakable, particularly in the face of the prominent use of the trademark ZIONSBANK (as opposed to the typographical misspelling) in the header of the website resolved from the Disputed Domain Name.
The Panel is satisfied that the Complainant has presented in the evidence a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The evidential burden of proof accordingly shifts to the Respondent to show otherwise. Since the Respondent has failed to do so, the prima facie case stands and the second limb of paragraph 4(a) of the Policy is established.
Paragraph 4(b)(iv) of the Policy describes a situation of bad faith registration under the following circumstance:
“by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online 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.”
It is obvious to the Panel that the Respondent is well aware of the existence of the Complainant and the trademark ZIONSBANK. The prominent use of the trademark ZIONSBANK on the website resolved from the Disputed Domain Name speaks clearly of this knowledge. It is too much of a coincidence that the content of the website resolved from the Disputed Domain Name is highly suggestive of, if not directly related to, financial services and related subject matter in the Complainant’s trade. The devious typographical misspelling of the trademark ZIONSBANK by replacing the letter “n” in the word “bank” with the letter “b” in the Disputed Domain name leaves little to the imagination that the Respondent must have intended to use the Disputed Domain Name to create a likelihood of confusion with the trademark ZIONSBANK by associating the Complainant’s services to financial services identified by or directed from the website.
The Complainant has leveled a very serious allegation against the Respondent for using the website resolved from the Disputed Domain Name to post pay-per-click advertising links on an automatically generated basis. Such activity has an objective of commercial gain. When considered in the context of the foregoing, a finding of bad faith registration and use pursuant to paragraph 4b)(iv) will be inescapable. In view of the severity of the circumstances, a reasonable respondent who is wrongly accused would quickly deny the charge. It is therefore telling that the Respondent has chosen not to respond. Pursuant to paragraph 14(a) of the Rules, the Panel hereby draws an adverse inference against the Respondent that automatically generated pay-per-click advertising links supporting an objective of commercial gain are posted on the website resolved from the Disputed Domain Name.
In view of the above, the Panel concludes that the Respondent is using the Disputed Domain Name to intentionally attract, for commercial gain, Internet users to the website resolved therefrom by creating a likelihood of confusion with the trademark ZIONSBANK as to the source, sponsorship, affiliation, or endorsement of the website or services posted on the website, in the manner as described by paragraph 4(b)(iv) of the Policy.
Additionally, the Panel notes that the Respondent has provided invalid contact particulars, whether of himself/herself, or the privacy service. A registrant is required to act honestly and to provide reliable contact details when registering a domain name. The fact that the Respondent has also taken steps to conceal its true identity is suggestive of bad faith on the part of the Respondent.
Having regard to the circumstances, the Panel finds that the third limb of paragraph 4(a) of the Policy is made out.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <zionsbabk.com> be transferred to the Complainant.
Kar Liang Soh
Sole Panelist
Date: January 5, 2018