Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Bank of America Corporation, Charlotte, NC, USA ("Complainant") represented by Larry C. Jones, Alston & Bird, LLP. The Respondent is Bill Smith, Fort Lauderdale, FL, USA ("Respondent") represented by Peter James Sandberg.

The domain name at issue is nationscapitalfunding.com, registered with Core Internet Council of Registrars.

The undersigned Daniel B. Banks, Jr., Panelist, certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on November 10, 2000; The Forum received a hard copy of the Complaint on November 6, 2000.

On Nov 10, 2000, Core Internet Council of Registrars confirmed by e-mail to The Forum that the domain name nationscapitalfunding.com is registered with Core Internet Council of Registrars and that the Respondent is the current registrant of the name. Core Internet Council of Registrars has verified that Respondent is bound by the Core Internet Council of Registrars 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 November 10, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 30, 2000 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@nationscapitalfunding.com by e-mail.

On January 10, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Daniel B. Banks, Jr. as Panelist.

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

Based on the foregoing, the undersigned finds as follows:

1 - The domain name NationsCaptialFunding.com is confusingly similar to Complainant's trademarks and service marks in which the Complainant has federally registered and common-law rights.

2 - The Respondent has not demonstrated the he has any right or legitimate interests in respect of the disputed domain name.

3 - The Respondent registered and is using the domain name in bad faith in that by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to the web-site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web-site or location or of a product or service on the web-site location.

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 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;

(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.

Complainant claims rights in various marks including NATIONSBANK, NATIONS FUNDS, NATIONS FUNDS FUNDAMENTALS, NATIONS FUND D.I.A.L., AND NATIONS FUND DIRECT INVESTOR ACCESS LINE.

Complainant claims that the domain name nationscapitalfunding.com is ‘strikingly similar’ similar to Complainant’s NATIONS FUNDS mark, and that this is sufficient to warrant a transfer under the ICANN Policy.

A domain name is confusingly similar to a Complainant’s mark when Internet users would think that an affiliation of some sort exists between Complainant and Respondent, when in fact, no such relationship exists. Treeforms, Inc. v. Cayne Industrial Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000).

See Space Imaging LLC v. Brownwell, AF 0298 (eResolution Sept 22, 2000) (finding confusing similarity where the Respondent’s domain name combines the Complainant’s mark with a generic term that has an obvious relationship to the Complainant’s business).

It is the finding of the undersigned that the Domain name "NationsCapitalFunding.com" is confusingly similar to Complainant's registered trademarks and service marks.

Complainant argues that since Respondent has no preexisting rights in Nations Capital Funding it has no rights in the contested domain name. Further Complainant argues that the Respondent, Bill Smith, is not affiliated with any organization known as Nations Capital Funding Corporation. Complainant’s assertions may be sufficient to shift the burden of proof to Respondent. See Clerical Medical Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by the Complainant that the Respondent has no right or legitimate interest is sufficient to shift the burden of proof to the Respondent to demonstrate that such a right or legitimate interest does exist).

Respondent has not provided any documentary evidence proving the existence of Nations Capital Funding Corporation. See AT&T Corp. v. Domains by Brian Evans, D2000-0790 (WIPO Sept. 27, 2000) (finding no rights or legitimate interests where Respondent does not provide any documentation on the existence of this company that might show what the company’s business was, or how the company’s years of existence, if it ever existed, might mesh with Complainant’s trademark claims). Also, Respondent has not offered any evidence that he had some right or legitimate interests in respect of the domain name in question at any time.

Complainant argues that because Respondent has no preexisting rights in nationscapitalfunding.com¸ it must have registered the domain name because of the fame and goodwill associated with Complainant’s NATIONS FUNDS mark. If the words or letters that comprise a domain name are obviously connected with Complainant, registration and use by Respondent, without an adequate explanation, will be deemed evidence of bad faith. See The London Metal Exchange Ltd. v. Syed Hussain; D2000-1388 (WIPO Dec. 15, 2000) (finding that the "letters ‘lme’ are so obviously connected with a well-known entity that their very use by someone with no connection to the Complainant suggests opportunistic bad faith"). Here, Respondent registered the domain name using the plural form of the name "Nations" instead of the possessive form "Nation's" which would have been more appropriate form if Respondent had an intent other than to emulate Complainant's registered marks and famous name.

Respondent does not have any rights in the domain name; therefore, registration and use can be presumed for the purpose of trading off Complainant’s goodwill. See America Online Inc. v. Shenzhen JZT Computer Software Co. Ltd, D2000-0809 (WIPO Sept. 6, 2000) (finding that "gameicq.com" and "gameicq.net" are obviously connected with services provided with the world-wide business of ICQ and the very use by someone with no connection with the product suggests opportunistic bad faith).

Respondent offered no evidence in this case other than his written response to the Complaint. Because of the Decision in this case, the undersigned did not find it necessary to address the issue of the authority of Attorney Peter James Sandberg to represent Respondent.

It is the decision of the undersigned that the domain name "NationsCapitalFunding.com" be transferred to the Complainant.