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Bank of America Corporation v. InterMos [2000] GENDND 809 (1 August 2000)

National Arbitration Forum

DECISION

Bank of America Corporation v. InterMos

Claim Number: FA0006000095092

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 Respondent’s 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.

1. 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.

The Complainant has rights in the mark, BANK OF AMERICA. The domain name in question is confusingly similar to the Complainant’s 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 Complainant’s mark by exploiting upon likely mistakes by users when entering the URL address).

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 Complainant’s 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.

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 Complainant’s 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