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Generic Top Level Domain Name (gTLD) Decisions |
Regions Financial Corporation v.
Defaultdata.com aka Brian Wick
Claim Number: FA0208000118271
PARTIES
Complainant
is Regions Financial Corporation,
Montgomery, AL (“Complainant”) represented by Robert L. Lee, of Alston
& Bird, LLP. Respondent is Defaultdata.com, Denver, CO
(“Respondent”) represented by Brian Wick.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <regionsfinancial.com>,
registered with Enom, 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.
Mr.
Peter L. Michaelson, Esq. as Panelist.
PROCEDURAL HISTORY
The
Complaint was brought pursuant to the Uniform Domain Name Dispute Resolution
Policy (“Policy”), available at <icann.org/services/udrp/udrp‑policy‑24oct99.htm>,
which was adopted by the Internet Corporation for Assigned Names and Numbers
(ICANN) on August 26, 1999, and approved on October
24, 1999, and in
accordance with the ICANN Rules for Uniform Domain Name Dispute Resolution
Policy (“Rules”) as approved on October
24, 1999, as supplemented by the
National Arbitration Forum Supplemental Rules for Uniform Domain Name Dispute
Resolution Policy
then in effect (“Supplemental Rules”).
Complainant
submitted a Complaint, together with Exhibits A‑C, to the National
Arbitration Forum (“the Forum”) electronically
on August 14, 2002; the Forum
received a hard copy of the Complaint on August 19, 2002.
On
August 14, 2002, Enom, Inc. confirmed by e-mail to the Forum that the domain
name <regionsfinancial.com> is
registered with Enom, Inc. and that Respondent is the current registrant of the
name. Enom, Inc. has verified that
Respondent is bound by the Enom, 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 20, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of September
9, 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@regionsfinancial.com by e-mail.
An
electronic copy of the Response, apparently without its Exhibits, was timely
received by the Forum. Subsequently, a
hardcopy of the Response, together with Exhibits A-E, was received on September
13, 2002, which was later than the
response deadline, and determined to be
complete. Though the hard-copy version
was filed late, the Panel has considered it.
On September 26, 2002, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the Forum appointed Mr. Peter L.
Michaelson, Esq. as Panelist and set
a due date of October 10, 2002 to receive the decision from the Panel.
Due to an unavoidable time conflict, the Panel extended
the due date for its decision to October 17, 2002.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
1. Confusing similarity/identicality
Complainant
contends that the disputed domain name is confusingly similar to Complainant’s
REGIONS mark.
Complainant
states the striking similarity between the disputed domain name and
Complainant's mark REGIONS are immediately apparent. Specifically, Complainant states that the disputed domain name
incorporates Complainant's mark REGIONS to which the descriptive word
"financial" has been appended.
This word merely describes the general class of services offered by Complainant.
Consequently,
Complainant contends that consumers who see the disputed domain name <regionsfinancial.com>
are almost certain to associate the disputed domain name with Complainant,
Regions Financial Corporation. In that
regard, not only does appending the word "financial" not serve to
distinguish the disputed domain name from the
mark REGIONS but rather it
heightens potential confusion inasmuch as that word will confirm the erroneous
impression to Internet
users that the disputed domain name is connected, in
some fashion, with Complainant and its financial services.
Hence,
Complainant concludes that the requirements of paragraph 4(a)(i) of the Policy
are satisfied.
2. Rights and legitimate interests
Complainant contends that Respondent has
no rights or legitimate interests in the disputed domain name.
First,
Complainant contends that Respondent’s registration and use of the disputed
domain name is a blatant attempt to trade on the
goodwill and fame associated
with the mark REGIONS. In that regard,
Complainant notes that Respondent registered that name more than eight years
after Complainant began using its mark
REGIONS.
Furthermore,
Complainant states that Respondent has no connection or affiliation with
Complainant of any kind, nor has Respondent
at any time received a license or
consent, express or implied, to use the mark REGIONS in a domain name or in any
other manner.
In
addition, Complainant contends that, given its numerous service mark
registrations for its mark REGIONS and as a result of its
prior extensive
sales, promotion, and advertising of its financial services, Respondent was on
notice of Complainant's exclusive
rights in its mark REGIONS at the time
Respondent registered the disputed domain name. Further, Complainant states that Respondent admits to having
actual knowledge of Complainant's trademark rights and that it registered
and
is using the disputed domain name because "Internet users will perceive
the Domain Name to be 'a possible electronic address
to an Established business
(i.e., REGIONS)' ".
Furthermore,
Complainant contends, that any defenses that Respondent puts forth regarding
its use of the disputed domain name in connection
with a web site that provides
"parody" (and hence is Constitutionally protected) and therefore a
legitimate, noncommercial
fair use is apparently misplaced. Specifically, Complainant states that
Respondent’s web site does not comment on or criticize Complainant or its
services in any way. Rather, as
reported by Complainant, that site contains nonsensical messages that reference
Senator Strom Thurmond and President George
W. Bush. Given this, Complainant asserts, via citing to, e.g., Dr. Seuss Enters. v. Penguin Books USA
[1997] USCA9 968; 109 F.3d 1394 (9th Cir. 1997) and Elvis Presley Enters. v. Capece [1998] USCA5 491; 141 F.3d 188, that appropriation of
a trademark for the purpose of satirizing or poking fun at something other than
the product or company symbolized
by the trademark is not a parody and is not
protected free speech under the First Amendment to the US Constitution.
Moreover,
Complainant points out that various prior ICANN panels have held there to be no
parody with regard to the same or virtually
identical content posted by this
particular Respondent to the Internet under domain names that include the
famous marks of others,
citing to: Preston
Gates & Ellis, LLP v. Defaultdata.com and Brian Wick, D2001-1381 (WIPO
Feb. 13, 2002) (rejecting Respondent’s argument that his use of Complainant’s
domain name was fair use because Respondent’s
use interfered in “substantially
too great a way with the legitimate rights of the service mark holders to
control the use of their
name to conduct business” and that “by registering a
multitude of service marks as domain names, Respondent goes beyond the
reasonable
or fair use of a mark to make a statement and into unreasonably or
unfairly interfering with the legally recognized interests of
others”); see
also Hunton & Williams v. Am.
Distribution Sys., Inc., D2000-0501 (WIPO Aug. 1, 2000); Adams
and Reese LLP v. Am. Distribution Sys. Inc. d/b/a Defaultdata.com, FA102860 (Nat. Arb. Forum Feb. 6, 2002); and Brandon Dunes L.P. v. DefaultData.com,
D2000-0431 (WIPO July 13, 2000).
Thus, Complainant concludes that
Respondent cannot demonstrate any rights or legitimate interests in the
disputed domain name pursuant
to paragraph 4(a)(ii) of the Policy.
3. Bad faith use and registration
Complainant contends that Respondent
registered and is using the disputed domain name in bad faith in violation of
the Policy.
First,
Complainant contends that Respondent's actions violate paragraph 4(b)(i) of the
Policy. Specifically, here Complainant
points to Respondent’s actions in
registering a multitude of domain names, each of which incorporates the
trademark and/or service mark of a third party,
manifests an intent to extort a
ransom for the transfer of the domain names from Respondent to the
corresponding trademark and service
mark owners.
Specifically, Complainant states that Respondent
registered the disputed domain name so that when Internet users entered a URL,
which
identified Complainant, those users would instead be misdirected to
Respondent’s site. In that regard,
Complainant states that, despite the fact that it does not endorse any
political figure or party, Respondent placed
politically charged images and
messages on its site accessible through <regionsfinancial.com> ,
knowing that Complainant would be disturbed by the misdirection of its own
consumers to the web site of Respondent, where the content
of that site may be
offensive to those users and which would therefore tarnish Complainant's mark
REGIONS. Accordingly, Complainant
states that it would only be left with an option of buying the disputed domain
name from Respondent or taking
legal action against it, and, as Complainant
contends, the "Respondent gambled on the former". Hence,
Complainant contends that this conduct constitutes bad faith registration and
use in violation of paragraph 4(b)(i) of the
Policy.
Second,
Complainant contends that Respondent's conduct also violates
paragraph 4(b)(ii) of the Policy.
Specifically, Complainant alleges that, in light of the fame and
notoriety of the mark REGIONS and Respondent's prior conduct (which
Respondent
admitted) in registering many domain names containing notorious marks owned by
various third parties, it is inconceivable
that Respondent could have
registered the disputed domain name without knowledge of Complainant's rights
in that mark and without
knowledge that Respondent's registration of that name
would block Complainant from owning a corresponding domain name registration
‑‑ a
registration which Complainant would find desirable. Moreover, Complainant states that Respondent has admitted to
having knowledge of Complainant and its rights and to having registered
and
used the disputed domain name to divert Internet traffic destined for
Complainant's web site to Respondent’s site.
As to those third parties, Complainant noted that Respondent has
admitted to using the corresponding domain names, which contain their
marks and
which Respondent has registered, to also divert traffic to Respondent's web
site in much the same fashion as Respondent
is diverting traffic away from
Complainant's site; similarly preventing those parties from registering domain
names that include
their marks.
B.
Respondent
1. Confusing similarity/identicality
Respondent
does not contest and, in fact, admits that the disputed domain name is similar
to the mark REGIONS of Complainant and,
as such, Internet users who enter that
name would expect to "find a website sponsored by Complainant."
Respondent
admits that it has registered Internet addresses similar to the names of
hundreds of firms, including Complainant.
It has apparently done so to ensure that those visitors who seek any of
the sites of those firms will be exposed to Respondent's "Internet
speech
project" through which it provides, what Respondent believes to be, a
Constitutionally protected free speech forum through
which "established
businesses" are subjected to critical public speech.
In
that regard, Respondent expressly states, in its Response:
"Anybody
driving down the Information Super-highway wanting to go to
RegionsFinancial.com might expect to find a website sponsored
by
Complainant. This is exactly why I
reserved RegionsFinancial.com – so speech can be heard."
Moreover,
as best understood by the Panel, Respondent views the disputed domain name as
nothing more than an "electronic business
address" which apparently
should be freely available to anyone to register and use in furtherance the
exercise of their rights
to free speech under the US Constitution.
2. Rights and legitimate interests
Respondent
apparently contends that it has rights and legitimate interests in the disputed
domain name inasmuch as it has registered
and is using that name as an address
to its web site through which Respondent provides what it views as being
Constitutionally protected
critical public speech, hence a "bona fide
use".
3. Bad Faith
Respondent
contends that its activities do not amount to bad faith use and
registration. Rather than setting forth
a specific argument, Respondent "will pass" on this element of the
Policy apparently, as best
understood by the Panel, as being moot in view of
Respondent's belief that it has rights and legitimate interests in the disputed
domain name.
FINDINGS
In the Complaint, a copy of the WHOIS
registration record for the disputed domain name appears in Exhibit A-1, and a
global registry
service (grs) record which identifies the registrar, appears in
Exhibit A-2. Together these records
indicate that Respondent registered that name with NSI on March 2, 2002.
A.
Complainant’s REGIONS marks
Complainant
owns federal registrations for various marks that include the term REGIONS and,
for two of those marks, has provided,
in Exhibit B-1 to the Complaint, copies
of the registration certificates, as issued by the United States Patent and
Trademark Office
(PTO). Both of these
registrations have become incontestible.
1)
REGIONS (stylized)
US registration 1,914,267;
registered August 22, 1995
This
service mark was registered for use in connection with: "banking
services" in international class 36.
This mark claims first use and first use in inter‑state commerce
of December 31, 1993.
2)
REGIONS (block letters)
US registration 1,881,600;
registered February 28, 1995
This
service mark was registered for use in connection with: "banking
services" in international class 36.
This mark claims first use and first use in inter‑state commerce
of December 31, 1993.
B. Complainant and its activities
Complainant, Regions Financial Corporation,
currently with $44.2 billion in assets, ranks among the largest financial
services companies
in the United States.
Complainant provides traditional commercial and retail banking services
and other financial services in the fields of investment banking,
asset
management, trust, mutual funds, securities brokerage, insurance, leasing and
mortgage banking. Complainant's banking
affiliates offer banking services from more that 680 banking offices, and it
provides investment and brokerage
services from more than 140 offices of Morgan
Keegan & Company, Inc., the latter being one of the largest investment
firms in
the southern Unites States.
Complainant ranks on both the Forbes 500 and Fortune 500 listing of
America’s largest companies and operates a web site located at
<regions.com>.
Complainant,
its subsidiary Regions Bank and their related companies have continuously used
the mark REGIONS since at least as early
as December of 1993 to identify
various financial services.
C.
Respondent and its activities
Respondent
is currently using the disputed domain name to re-direct Internet users to its
web site located at <defaultdata.com/websites/parodybank/default.asp?domain=
regionsfinancial.com>. The top of the home page of that site
contains a statement that the site is a “free speech flyer” protected by the
First Amendment
and that the site is being “passed out at a possible electronic
address to an Established business
(no different than free speech at a physical address to a business) and this 'free
speech flyer' attempts
a U.S.A.
Constitutionally granted free speech parody.” (emphasis in original) (a copy of that page is provided in
Exhibit 3 of the Declaration of Ms. Wendy Robertson which itself appears
in
Exhibit A to the Complaint). The site
contains photographs and random statements about Strom Thurmond. The site also includes an image of President
George W. Bush portrayed as a superhero with the accompanying text “There’s a
NEW George
W. in town!!” The site does
not contain any commentary about, or criticism of, Complainant or its services.
Under
the pseudonyms “American Distribution Systems, Inc.” and “Defaultdata.com”,
Respondent has routinely registered trademarks and
service marks of others as
domain names and then used each of those names to re-direct Internet users to
Respondent's “free speech
flyer site.”
In that regard, see Hunton
& Williams v. Am. Distribution Sys., Inc., D2000-0501 (WIPO Aug. 1,
2000).
Other domain names which Respondent has registered
include, e.g.,: <alliedwasteindustries.com>,
<budweiserbrewery.com>, <capitalonefinancial.com>,
<cedarssinai.com>, <circuitcitystores.com>,
<coorsbrewingcompany.com>, <deanfood.com>, <first-union.com>,
<hiltonhotel.com>, <krogerfoods.com>,
<publixsupermarket.com>, <reynoldstobacco.com>,
<sara-lee.com>, and <winndixiestores.com>. Respondent's registration of all of these
other names is reflected in copies of hard‑copy printouts from the WHOIS
database
also provided in Exhibit 4 to the Robertson Declaration.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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.”
Paragraph
4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to
a trademark or service mark in which Complainant
has rights;
(2)
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 Panel finds that confusion is likely
to arise as a result of Respondent’s use of the disputed domain name.
In that regard, the disputed domain name
includes Complainant's registered mark REGIONS, which, as a result of its
continuous use
since 1993, has clearly acquired requisite secondary meaning and
distinctiveness well prior to Respondent’s registration of the disputed
domain
name in March 2002.
There
can be no question here that the disputed domain name, by virtue of its
inclusion of the term REGIONS, as by Respondent or by
a third‑party to
which Respondent might transfer that name, is likely to cause user confusion.
Such
confusion would undoubtedly cause Internet users intending to access
Complainant's website, but who reach a website through the
disputed domain
name, to think that an affiliation of some sort exists between Complainant and
Respondent or its third‑party
transferee, when, in fact, no such
relationship would exist at all. See,
e.g., AT&T Corp. v. Roman Abreu
d/b/a Smartalk Wireless,
D2002‑0605 (WIPO Sept. 11, 2002); Pfizer
Inc. v. Order Viagra Online, D2002‑0366 (WIPO July 11, 2002); L.F.P., Inc. v. B and J Props., FA
109697 (Nat. Arb. Forum May 30, 2002); Peter
Frampton v. Frampton Enters., Inc., D2002‑0141 (WIPO
April 17, 2002); Spence-Chapin
Servs. to Families and Children v. Stanley Wynman, FA 100492 (Nat. Arb.
Forum Dec. 10, 2001); MPL Communications
v LOVEARTH.net, FA 97086 (Nat. Arb. Forum June 4, 2001); Meijer, Inc. v. Porksandwich Web Servs.,
FA 97186 (Nat. Arb. Forum July 6, 2001); MPL
Communications v 1WebAddress.com, FA 97092 (Nat. Arb. Forum June 4, 2001); Am. Home Prods. Corp. v. Malgioglio,
D2000‑1602 (WIPO Feb. 19, 2001);
Surface Prot. Indus., Inc. v. The Webposters, D2000‑1613 (WIPO Feb.
5, 2001); Dollar Financial Group, Inc. v.
VQM NET, FA 96101 (Nat. Arb. Forum Jan. 25, 2001); eBAY Inc. v. G L Liadis Computing, Ltd., D2000‑1463 (WIPO
Jan. 10, 2001); Treeforms, Inc. v. Cayne
Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000); see
also The Pep Boys Manny, Moe and Jack
of California v. E‑Commerce Today, Ltd. AF‑0145 (eResolution
May 3, 2000).
It is simply inconceivable to the Panel,
given the long-term use by the Complaint of its mark REGIONS and the resulting
widespread
public recognition attained by that mark both taken in view of
Complainant's activities in providing its financial services under
its REGIONS
marks and the promotion that Complainant provided of its mark REGIONS, that an
Internet user familiar with the mark REGIONS
would think that a web site
accessible by <regionsfinancial.com> was not affiliated in some
manner with Complainant. In fact,
Respondent conceded as much.
As
such, the Panel finds that sufficient similarity exists under
paragraph 4(a)(i) of the Policy between the disputed domain name
and
Complainant's REGIONS marks.
Rights or Legitimate Interests
Based
on its federal trademark registrations, Complainant has acquired exclusive
rights to use its REGIONS marks in connection with
the services recited in
those registrations. Furthermore, by
virtue of the registration of these marks, the PTO has implicitly recognized
that each such mark is distinctive and
has acquired appropriate secondary
meaning in the marketplace.
The Panel believes that Respondent has yet to provide any
basis that would legitimize any claim it has to the disputed domain name. In fact, it is extremely unlikely that
Respondent can even make such a claim.
The
simple reason is that the disputed domain name contains Complainant's mark
REGIONS under which Complainant provides its services. Furthermore, Complainant has never
authorized Respondent to utilize any of its REGIONS marks, or a mark
confusingly similar thereto,
let alone in conjunction with the specific
services which Complainant provides under any of those marks, nor does
Complainant have
any relationship or association whatsoever with Respondent.
Hence, any use to which Respondent were
to put the mark REGIONS or a mark confusingly similar thereto, in connection
with the financial
services presently provided by Complainant and set forth in
any of Complainant's service mark registrations would directly violate
the
exclusive trademark rights now residing in Complainant. See, e.g., Pfizer Inc. v. Order Viagra Online, cited supra; the MPL
Communications, FA 97086 and FA 97092 decisions, cited supra; Am. Online, Inc. v. Xianfeng Fu, D2000‑1374 (WIPO
Dec. 11, 2000), and Treeforms,
Inc. v. Cayne Ind. Sales Corp., cited supra.
Even
apart from Respondent’s concession, it is eminently clear to this Panel that
Respondent, in choosing a domain name that at its
essence completely
incorporates Complainant's mark REGIONS and appends to it the generic term
"financial", not only has
intentionally sought to create a
confusingly similar name but also is opportunistically exploiting Internet user
confusion by diverting,
through re‑direction and diversion, Internet
users away from Complainant's site to Respondent's web site for the latter's
own
benefit.
Specifically, though Respondent argues that its “free speech
flyer” web site constitutes parody or critical comment and as such
Constitutionally
protected free speech and implicitly by extension fair use
under paragraph 4(c)(iii) of the Policy, the Panel, upon examining the
home
page provided in the Robertson declaration, finds that that site is devoid of
any mention of Complainant and/or its services. Hence, that site simply contains no such speech that at the
outset would fall into any such constitutionally protected class. As such, the principal purpose which this
Panel believes Respondent had in choosing the disputed domain name is simply to
gain enhanced
exposure for its web site, by the diversion of users who, upon
entering the disputed domain name into their browsers would seek to
reach a
site provided by Complainant but in fact, and unbeknownst to those users, are
then re‑directed to Respondent’s site
-- users which Respondent would not
attract but for having incorporated Complainant’s mark REGIONS within the
disputed domain name. In fact,
Respondent acknowledges this indeed was its motivation.
Such
parasitic use itself, which at its essence relies on instigating and
exacerbating user confusion, can not and does not constitute
bona fide
commercial or fair use sufficient to legitimize any rights and interests
Respondent might have in the disputed domain name. See Peter Frampton
v. Frampton Enters., Inc., cited supra.
Moreover, the Panel is cognizant of the
heavy burden that would be placed on complainants if in support of their cases
on illegitimacy
each of those complainants was to be impressed with a burden of
providing detailed proof of any lack of rights or legitimate interests
on
behalf of their respondents. The Panel
believes that where allegations of illegitimacy are made, particularly as here,
when coupled with conduct of a respondent
that evidences bad faith, it is quite
reasonable to shift the burden of proof to that respondent to adequately show
that its use
of the disputed domain name is legitimate, such as by showing
that, in conjunction with the disputed domain name, it is making a
bona fide
commercial offering of goods or services or preparations for such offerings, or
non‑commercial or fair use. Given
the situation now facing the Panel, it is beyond question that Respondent's
conduct here falls far short of meeting this burden
‑‑ particularly
given that no facts have been proven to support such usage. See
Am. Home Prods. Corp. v. Malgioglio, cited supra; Surface Prot. Indus.,
Inc. v. The Webposters, cited supra; College
Summit, Inc. v. Yarmouth Educational Consultants, Inc., D2000‑1575
(WIPO Jan. 17, 2001); MSNBC Cable, LLC v.
Tysys.com, D2000‑1204 (WIPO Dec. 8, 2000) and Playboy Enters. Int’l, Inc., D2000‑1016
(WIPO Nov. 7, 2000).
Respondent has simply provided no valid reason
why it could not provide whatever critical comment or parody it wanted through
its
site but without using Complainant’s mark REGIONS in a domain name as an
instrument for user diversion.
Moreover, the illegitimacy of Respondent's interests is compounded by
Respondent having registered and used domain names that include
numerous
third-party trademarks for implementing the same diversion.
In
light of the above findings, the Panel is not persuaded that Respondent has any
or, based on current facts provided to the Panel,
is likely to acquire any
rights or legitimate interests in the disputed domain name under any provision
of paragraph 4(c) of the
Policy.
Thus,
the Panel finds that Respondent has no rights or legitimate interests in the
disputed domain name within paragraph 4(a)(ii)
of the Policy.
Registration and Use in Bad Faith
The
Panel firmly believes that Respondent's actions constitute bad faith
registration and use of the disputed domain name.
When
Respondent chose and registered the disputed domain name <regionsfinancial.com>
on March 2, 2002, it had been fully aware of Complainant's mark REGIONS and
particularly the widespread reputation which that mark
had attained as a result
of Complainant's substantial marketing efforts for its financial services. In fact, it is just because of and to
intentionally avail itself of that notoriety that Respondent selected and
registered the disputed
domain name that specifically included Complainant's
mark REGIONS. Respondent even admitted
as such, recognizing that its subsequent use of that mark in its domain name
would effectively capture an
increased number of Internet users, thus providing
Respondent with a larger audience for its message than it would otherwise
attain
-- for a message that bore absolutely no relation to Complainant. Without question, Respondent's actions here
in so registering the disputed domain name, with the intention of effectively
misappropriating
the goodwill of Complainant's mark for Respondent's own
benefit, clearly constitutes bad faith registration.
Once
Respondent registered the name, it then employed the name to intentionally
divert and re-direct Internet users, who sought Complainant's
web site, to
Respondent's free speech cite to which those users would be exposed to Respondent's
critical comment and/or parody --
though none of its message bore any relation
to Complainant. Given the omission of
any reference to Complainant in Respondent's message, the use of Complainant's
mark as a vehicle, within the
disputed domain name, to access that message
falls well short of constituting Constitutionally protected speech.
Moreover
and by its own admission -- even apart from the proof submitted by Complainant,
Respondent registered a multitude of other
domain names, each of which also
included a well-known third party registered mark, all apparently without the
approval of the corresponding
owners of the marks. Respondent uses those resulting domain names to implement the
exact same diversion and re-direction of Internet users, intent on reaching
corresponding web sites of the owners of the marks, to Respondent's web site
instead where those users are exposed to the same message
as here. Hence, Respondent is opportunistically
exploiting all such marks -- including the mark REGIONS of the present
Complainant -- and the
resulting user confusion for its own benefit by: (a)
falsely suggesting that Respondent's message or Respondent itself is affiliated
with, sponsored or sanctioned by each of those mark owners -- hence providing
heightened credibility for Respondent and its message,
and (b) attaining a
significantly enhanced exposure for its message than Respondent would otherwise
receive. Obviously those benefits
confer value on Respondent: value which it is clearly not entitled.
This
conduct constitutes bad faith use under paragraph 4(a)(iii) of the Policy.
Thus, the Panel concludes that
Complainant has provided sufficient proof of its allegations to establish a
prima facie case under
paragraph 4(a) of the Policy upon which the relief it
now seeks can be granted.
DECISION
In
accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the relief
sought by Complainant is hereby GRANTED.
The
disputed domain name, namely <regionsfinancial.com>,
is ordered TRANSFERRED to Complainant.
Peter L. Michaelson, Esq., Panelist
Dated: October 14, 2002
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