Bank of America Corporation v. InterMos
[Indexed as: Bank of America Corporation v. InterMos]
[Indexed as: WWWBANKOFAMERICA.COM]
National Arbitration Forum
Administrative Panel Decision
Case No. FA0006000095092
Commenced: 5 July 2000
Judgment: 1 August 2000
Presiding Panelist: James A. Carmody
Domain name Domain name dispute resolution policy Domain name pirate U.S. Trademark Confusingly similar Typing error - Rights Legitimate interests Domain pointer - Bad faith registration Bad faith use.
Complainant owns both U.S. registered trademark for the mark Bank of America and the domain name bankofamerica.com. Respondent registered the domain name wwwbankofamerica.com.
Held, Name Transferred to Complainant.
The domain name at issue is confusingly similar to Complainants mark. The removal of the period between www and the domain name takes advantage of a typing error typically made by Internet users when performing searches.
As Respondent is not a financial institution and lives in Moscow. It is clear that Respondent is not commonly known by the domain name wwwbankofamerica.com. Respondent has made no claim as to the domain names use in connection with a bona fide offering of goods and services or its legitimate non-commercial or fair use of the site. Instead, the domain name at issue points to Respondents site <gotoo.com/treasure>, a site that displays banner advertising and commercial content. Therefore, the Panel concludes that Respondent has no rights or legitimate interest in the domain name in question.
The Panel finds that Respondent registered and used the domain name in bad faith. By using the domain name at issue, Respondent attempted to attract, for commercial gain, Internet users to another website by creating a likelihood of confusion with Complainants mark. Respondent used the domain name at issue to transport users to Respondents website which derived revenue and profit from banner ads and commercial content.
Policies referred to:
ICANN Uniform Domain Name Dispute Policy
Cases referred to:
Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000)
Compangnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar.
14, 2000)
Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000)
PARTIES
The Complainant is Bank of America Corporation, Charlotte, NC, USA
("Complainant"). The Respondent is InterMos, Moscow ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is "WWWBANKOFAMERICA.COM", registered with
TUCOWS.com, Inc. ("Tucows").
PANELIST
Hon. James A. Carmody, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
("The Forum") electronically on June 29, 2000; The Forum received a hard
copy of the Complaint on June 29, 2000.
On July 5, 2000, Tucows confirmed by e-mail to The Forum that the domain
name "WWWBANKOFAMERICA.COM" is registered with Tucows and that the Respondent
is the current registrant of the name.
On July 5, 2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of July
25, 2000 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via email, post and fax, and to all entities
and persons listed on Respondents registration as technical, administrative
and billing contacts by email.
On July 25, 2000, having received no Response from Respondent, using
the same contact details and methods as were used for the Commencement
Notification, The Forum transmitted to the parties a Notification of Respondent
Default.
On July 28, 2000, pursuant to request to have the dispute decided by
a Single Member panel, The Forum appointed the Hon. James A. Carmody as
Panelist.
RELIEF SOUGHT
The Complainant requests that the domain name transferred from the
Respondent to the Complainant.
PARTIES CONTENTIONS
A. Complainant
The Complainant contends that the Respondent has registered a domain
name that is confusingly similar to its trademark registered for and in
use by the Complainant. Further, the Complainant contends that the Respondent
has no rights or legitimate interests to the domain name, and that the
respondent has registered and is using the domain name in bad faith.
The Complainant contends that the Respondent is a domain name pirate,
using one or more domain names, which are colorable variants of famous
names and marks of others.
B. Respondent
The Respondent submitted no response in this matter. As a result, all
reasonable inferences of fact in the allegations of the Complainant will
be deemed true.
FINDINGS
The Complainant and its predecessors, Bank America Corporation and
NationsBank Corporation, are a large bank holding company in the United
States and a well known financial institution. The Complainant owns the
U.S. registered trademark for the mark, BANK OF AMERICA (registered July
30, 1968; No. 853,860). The Complainant also owns the domain name, <bankofamerica.com>.
The Respondent registered the domain name in question April 4, 2000.
The website for this domain name connects to <gotoo.com/treasure>, a
site that displays banner advertising and commercial content.
DISCUSSION
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy")
directs that the complainant must prove each of the following three elements
to support a claim that a domain name should be cancelled or transferred:
(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;
(2) the Respondent has no rights or legitimate interests in respect
of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Identical and/or Confusingly Similar
The Complainant has rights in the mark, BANK OF AMERICA. The domain
name in question is confusingly similar to the Complainants mark. It takes
advantage of a typing error (eliminating the period between the www and
the domain name) that users commonly make when searching on the Internet.
See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000)
(finding that the domain name <0xygen.com> (with zero in place of letter
O) is confusingly similar to Complainants mark by exploiting upon likely
mistakes by users when entering the URL address).
Rights or Legitimate Interests
The Complainant asserts that the Respondent has no rights or legitimate
interests in the domain names in question. The Respondent has not denied
that assertion.
The domain name in question is not a mark by which the Respondent is
commonly known. Policy 4(c)(ii). The Respondent is not a financial
institution and is located in Moscow. Certainly, the domain name "WWWBANKOFAMERICA.COM"
is not a mark under which the Respondent is commonly known. See Compangnie
de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding
no rights or legitimate interest where Respondent was not commonly known
by the mark or never applied for a license or permission from the Complainant
to use the trademarked name).
The Respondent has made no claim that it is using the domain name in
connection with a bona fide offering of goods and services or is making
a legitimate noncommercial or fair use of the site. Policy 4(c)(i),
(iii). Rather, the Respondent is using a portion of the Complainants mark
to transport users to another website.
For these reasons, the panel concludes that the Respondent has no rights
or legitimate interest in the domain name in question.
Registration and Use in Bad Faith
The Complainant asserts that the Respondent acted and is acting in
bad faith. The Respondent has not denied that assertion.
The Respondent intentionally attempted to attract, for commercial gain,
Internet users to another website by creating a likelihood of confusion
with the Complainants mark as to the source, sponsorship, affiliation,
or endorsement of the on-line location. Policy 4(b)(iv). The Respondent
transports users to a website that is designed to derive revenue and profits
from the banner ads and other commercial content. This is evidence of registration
and use in bad faith. See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat.
Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted
users to advertisements).
DECISION
Having established all three elements required by the ICANN Policy
Rule 4(a), it is the decision of the panel that the requested relief be
granted.
Accordingly, for all of the foregoing reasons, it is ordered that the
domain name, "WWWBANKOFAMERICA.COM" be transferred from the Respondent
to the Complainant.
James A. Carmody, Judge (Ret.),
Arbitrator
Dated: August 1, 2000