DECISION

Bank of America Corporation v. Seventh Summit Ventures

Claim Number: FA0208000118174

PARTIES

Complainant is Bank of America Corporation, Charlotte, NC, USA (“Complainant”) represented by Larry C. Jones, of Alston & Bird LLP.  Respondent is Seventh Summit Ventures, St. Johns, WEST INDIES (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <bankofmerica.com>, registered with Tucows, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on August 9, 2002; the Forum received a hard copy of the Complaint on August 12, 2002.

On August 12, 2002, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <bankofmerica.com> is registered with Tucows, Inc. and that Respondent is the current registrant of the name.  Tucows, Inc. has verified that Respondent is bound by the Tucows, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On August 13, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 3, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@bankofmerica.com by e-mail.

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 September 18, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <bankofmerica.com > domain name is confusingly similar to Complainant's BANK OF AMERICA mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent has not submitted Response.

FINDINGS

Complainant is the largest consumer bank in the United States and one of the world’s best-known financial institutions.  Complainant has exclusively used the BANK OF AMERICA mark to identify its banking and financial services.  Complainant’s BANK OF AMERICA mark is registered with the United States Patent and Trademark Office as Registration Number 853,860. 

Complainant’s services are advertised exclusively under the BANK OF AMERICA mark.  Its financial services are advertised and promoted worldwide in various forms of media. Complainant also has a presence on the Internet and operates its website at <bankofamerica.com>.  The website is an important part of Complainant’s marketing program and is used to promote Complainant’s wide variety of financial services.  In advertising and promoting its services to the public under the BANK OF AMERICA mark, Complainant spends tens of millions of dollars annually.

Respondent registered the disputed domain name on November 15, 2000.  Respondent is using the disputed domain name in order to divert Internet users to <superinternetdeals.com/creditcard.html>.   This website promotes the “USA GOLD” credit card.  The credit card advertised by Respondent is not sponsored by or approved in any way by Complainant.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

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:

(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; and

(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

Complainant has established rights in the BANK OF AMERICA mark through registration with the United States Patent and Trademark Office as well as continuous exclusive use of the mark in commerce. 

Respondent’s <bankofmerica.com> domain name is confusingly similar to Complainant’s mark because it is a common misspelling of Complainant’s mark.  Respondent merely omits the “a” in America, thereby capitalizing on a common typing error.  The omission of one letter in a well-known mark is not enough to create a distinct domain name capable of overcoming a claim of confusing similarity.  See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to reply to Complainant’s assertions that it lacks rights and legitimate interests in the disputed domain name.  Respondent’s failure to respond gives rise to the presumption that Respondent lacks rights and legitimate interests in the disputed domain name.  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because Respondent never submitted a response nor provided the Panel with evidence to suggest otherwise).

Furthermore, the Panel is permitted to accept Complainant’s allegations as true and make reasonable inferences in favor of Complainant because Respondent has failed to come forward with a Response.  See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).

Respondent is using the disputed domain name in order to divert Internet users to a website that advertises a credit card.  It can be inferred that Respondent is receiving some type of commercial revenue for diverting Internet traffic to the <superinternetdeals.com/creditcards.html> website.  The use of a domain name confusingly similar to Complainant’s mark in order to divert Internet users to an unconnected advertising website is not considered to be in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own website by using Complainant’s trademarks); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, it's use of the names was not in connection with the offering of goods or services or any other fair use).

Respondent has failed to come forward with any evidence that it is commonly known by any other name than Seventh Summit Ventures.  Furthermore, there is no evidence on record that Respondent is known as <bankofmerica.com>.  Respondent, therefore, has failed to establish that it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is using the disputed domain name in order to divert Internet users to a website that advertises a credit card, which constitutes activity that competes with Complainant’s financial services.  Internet users who mistakenly mistype the “America” portion of Complainant’s <bankofamerica.com> domain name are diverted to Respondent’s website and are affronted with Respondent’s advertising material instead of Complainant’s financial services website.  Behavior such as this is considered to be evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii) because it disrupts Complainant’s business.  See Mission Kwa Sizabantu v. Rost, D2000-0279 (WIPO June 7,2000) (defining “competitor” as "…one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); see also EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where Respondent’s sites pass users through to Respondent’s competing business); see also EBAY, Inc. v. MEOdesigns & Matt Oettinger, D2000-1368 (Dec. 15, 2000) (finding that Respondent registered and used the domain name <eebay.com> in bad faith where Respondent has used the domain name to promote competing auction sites).

Respondent is engaged in a practice known as typosquatting.  The practice of “typosquatting” has been recognized as a bad faith use of a domain name under the UDRP.  See e.g. Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com> and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to Complainant).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <bankofmerica.com> be transferred from Respondent to Complainant.

Tyrus R. Atkinson, Jr., Panelist

Dated:  October 2, 2002.

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