ARBITRATION

AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

Nedbank Limited v. Gregg Ostrick, GNO, Inc.
Case No. D2016-0515

1. The Parties
The Complainant is Nedbank Limited of Johannesburg, South Africa, represented by Adams & Adams
Attorneys, South Africa.
The Respondent is Gregg Ostrick, GNO, Inc. of New Orleans, Louisiana, United States of America (United
States), represented by John Berryhill, Ph.d. esq., United States.

2. The Domain Name and Registrar

The disputed domain name <greentrust.com> (the Disputed Domain Name) is registered with eNom, Inc.
(the Registrar).

3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the Center) on March 16, 2016.
On March 16, 2016, the Center transmitted by email to the Registrar a request for registrar verification in
connection with the Disputed Domain Name. On March 17, 2016, the Registrar transmitted by email to the
Center its verification response confirming that the Respondent is listed as the registrant and providing the
contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name
Dispute Resolution Policy (the Policy or UDRP), the Rules for Uniform Domain Name Dispute Resolution
Policy (the Rules), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy
(the Supplemental Rules).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the
Complaint, and the proceedings commenced on March 21, 2016. In accordance with the Rules, paragraph
5, the due date for Response was April 10, 2016. On April 6, 2016, the Respondent requested the extension
of the Response due date. In accordance with the Rules, paragraph 5(b), the Center extended the
Response due date until April 14, 2016.
The Response was filed with the Center on April 14, 2016.

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The Complainant submitted a Supplemental Filing on April 22, 2016.
The Center appointed Nick J. Gardner, Tony Willoughby and Richard G. Lyon as panelists in this matter on
May 4, 2016. The Panel finds that it was properly constituted. Each member of the Panel has submitted the
Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to
ensure compliance with the Rules, paragraph 7.

4. Factual Background
The Complainant is a bank incorporated in South Africa. Its origins date back to 1888. It trades under its own
name. It also operates or promotes what it refers to as The Green Trust further details of this appear
under the Complainants Contentions, below. It owns a number of registered trademarks for the words The
Green Trust which date from 1990 for example South African trademark 1990/4674 registered with effect
from June 8, 1990. These trademarks disclaim any rights in the words green and trust singly. It has in
total 49 such trademarks all of which are registered in southern African countries (South Africa, Namibia,
Lesotho and Botswana). The Complainant also owns a number of domain names including the words
green and trust. These are discussed further below.
The Disputed Domain Name was originally created on August 18, 2004. It has been used to resolve to a
parking page containing sponsored links. The content of this page is discussed further below.
The Respondent is an individual based in the United Sates who is in the business of trading in domain
names. He owns a large portfolio of domain names.
The Complainants legal advisers have written letters of complaint to the Respondent but received no reply.

5. Parties Contentions
A. Complainant
The Complainant says that the Disputed Domain Name is identical to its registered trademark GREEN
TRUST.
It then says that the Respondent has no rights or legitimate interests in the term Green Trust. The
Complainant says that its use of the term Green Trust commenced in 1990 whilst the Disputed Domain
Name was not registered until 2004. The Complainant describes its Green Trust as follows:
THE GREEN TRUST funds a broad range of conservation projects from species-focused projects to urban
greening projects. All these projects retain a significant focus on community-based conservation. THE
GREEN TRUST supports projects which focus on the prevention of degradation of the South African natural
environment, the conservation of biodiversity and the sustainable use of natural resources. This is achieved
through financing, networking, programme management and project development by engaging effectively
with strategic partners to access and share resources.
And
In 1991, the Complaint partnered with the World Wildlife Federation (WWF) in a joint initiative geared
towards providing support and finance for programmes focused on the conservation of biodiversity in South
Africa and the preservation of South Africas natural resources for the benefit of its people. This joint venture
was named the WWF Nedbank Green Trust, and in 2016 the Complainant will be celebrating 25 years of its
partnership with the WWF.

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The Complainant says it owns a number of domain names that incorporate the words green and trust,
namely <greentrust.co.za>, <thegreentrust.co.za>, <nedbankgreentrust.co.za>, <nedbankgreentrust.com>,
<wwfnedbankgreentrust.co.za>, <wwfnedbankgreentrust.com>, <wwfnedbankgreentrust.org>, and
<wwfnedbankgreentrust.net>.
The Complainant has provided examples of promotional material and website content that it publishes.
These are discussed further below.
The Complainant says that a Google search for The Green Trust revealed 148,000,000 results with the first
4 results and many later ones referring to the Complainants The Green Trust. It provides a print out of the
first three pages of these results.
The Complainant has not provided any financial information about its Green Trust.
The Complainant says that the website associated with the Disputed Domain Name features various topics
associated with banking and finance, such as loans, credit and banking. Furthermore, it says that when one
accesses the Financing tab, for example, a number of sponsored listings related to this subject are reflected.
Screen-prints of the landing page and Financing page are provided by the Complainant. It says that the
selection of financial and banking related topics for the website was clearly with the Complainant in mind. It
also says that it is noteworthy that many of the sponsored listings on the Financing tab (and also the Banking
and Credit tabs) reference websites in South Africa, where the Complainant is located. One of the listings
also features the Complainant. It says that this shows clearly the Respondent had knowledge of the
Complainants GREEN TRUST marks and no doubt adopted the Disputed Domain Name to benefit from the
Complainants reputation in it.
The Complainant says that in light of the substantial use of the GREEN TRUST trademarks by the
Complainant since 1990 and the extensive advertising and promotion of the Complainants Green Trust
initiatives, the Respondent could not have missed the existence of the Complainants rights when the
Disputed Domain Name was registered. In fact, he [c]learly . . .had knowledge of the Complainant and its
THE GREEN TRUST marks at the time of the registration of the Disputed Domain Name and subsequent
use of it, which is demonstrated by the website references to the Complainant, and the products related to
the banking industry within the geographic area where the Complainant operates.
Relying on all this material the Complainant says that the Respondents registration and use is in bad faith
because (i) the Disputed Domain Name is the same as the Complainants trademark and (ii) the Respondent
has made no attempt to use the Disputed Domain Name in respect of a bona fide offering of goods or
services and (iii) the Disputed Domain Name was acquired by the Respondent with a clear intention to refer
to the Complainants mark in order to capitalize on its reputation by diverting Internet users seeking
information about the Complainant, to its website and earning a passive income from the sponsored links
that appear on it. Such conduct demonstrates that the only purpose of the Respondent was to use the
Disputed Domain Name intentionally to attract, for commercial gain, Internet users to the website associated
with it by creating a likelihood of confusion with the Complainants trade mark and to take unfair advantage
from the well-known character of the trade mark for the Respondents profit.
Furthermore, the Complainant submits that a pattern of conduct is clearly apparent with regard the
Respondent in the present case. The Complainant says the Respondent has a long history of registration of
domain names comprising third parties famous trade marks in combination with generic terms, or misspelled.
In this regard the Complaint as originally filed stated as follows The Respondent has been the subject of at
least 8 prior proceedings under the UDRP in which he and/or his business GNO, Inc was found to have
abusively registered and used the trade marks of third parties. As demonstrated in the full list in Annexure
10, the Complainant asserts that paragraph 4(b)(ii) of the Policy also applies to the present case. Following
the filing of the Response in which the Respondent disputed most vehemently that this statement was
factually accurate the Complaint lodged a supplemental filing (the Supplemental filing) which stated as
follows:

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SUPPLEMENTAL FILING TO CORRECT TYPOGRAPHICAL ERROR IN COMPLAINT
1.
Following receipt of the Respondents Response, Counsel on behalf of the Complainant realised
that a typographical error regrettably occurred in Paragraph 22 of the Complaint under the heading
dealing with Respondents bad faith. Reference to the 8 prior proceedings in the paragraph should be
3 prior proceedings, being WIPO Case No. D2005-0681, NAF1380358 and NAF997923.
2.
Also it appears that the UDRP search results reflecting these decisions were inadvertently not
attached as part of Annexure 10, but instead the list referred to by the Respondent. The correct list is
hereby attached.
Respectfully submitted
B. Respondent
The Respondent has produced a very detailed Response with accompanying documentary evidence, and
set out numerous authorities in relation to its case. It is not necessary to repeat all that the Respondent has
said here. The salient points the Respondent makes are as follows.
As an overarching point the Respondent says the term green trust is widely used by many persons to refer
to environmental programs including trusts of one type or another, and no one person has a monopoly in the
use of the words. It also says that such reputation and rights the Complainant has in the term Green Trust
(and it challenges the Complainants claims in this regard) is in any event confined to Southern Africa.
The Respondent accepts that the Complainant has shown that it has certain rights in THE GREEN
TRUST for regional philanthropic activities conducted in locations remote from the Respondent. He does
not challenge the existence or date of the registered trademarks relied upon by the Complainant, but he does
say that all other evidence produced by the Complainant as to activities concerning the Green Trust
postdate the Respondents registration of the Disputed Domain Name.
The Respondent says that if a Google search is carried out in the United States in respect of Green Trust it
produces millions of results with the Complainants Green Trust not featuring until the third page down in
the results. The Respondent expressly sets out in the Response what he says are a few specific examples
of other users of the same term found in these search results (and also says that many more can be found if
required). The examples specifically identified are as follows:
GreenTrust Alliance
The Postcode Green Trust
Scottish Power Green Energy Trust
Global Deep Green Trust
Narroways Millenium Green Trust
St. Stephens Millenium Green Trust
Green Trust Cash
The Pratt Green Trust
Green-Trust.org
Green Trust Solutions
Green Trust Services
Green Trust energy consultancy
The Respondent also points out (with relevant details) that there are a number of registered trademarks in
the United States for the term Green Trust, all postdating the Respondents registration of the Disputed
Domain Name, and none of them have anything to do with the Complainant.
The Respondent says that when he registered the Disputed Domain Name in 2004 he had never heard of
the Complainant or its Green Trust activities.
The Respondent fiercely disputes he has acted in bad faith and directly challenges the Complainants
accusation of his having eight previous findings of abusive registration against him, which he characterizes

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as an outright lie and purely libelous.
The Respondent accepts that he did not reply to correspondence from the Complainants counsel, but says
he was entitled not to do so, and no adverse inference should be drawn from that fact.
The Respondent makes many more points in support of his arguments but it is not necessary to consider
those further where relevant they are addressed below.

6. Discussion and Findings

Procedural Matters
The Panel will allow the Complainants Supplemental Filing. It corrects an error in the Complaint - and that
error was a matter that was hotly disputed by the Respondent. The Panel considers it to be in the interests
of justice that an accurate factual record be considered. In any event admission of this filing does not alter
the Panels decision in this case and hence causes no prejudice to the Respondent.
Substantive Matters
To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel in
respect of the Disputed Domain Name that:
(i)

the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in
which the Complainant has rights; and

(ii)

The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

(iii)

The Disputed Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has established that it owns a number of registered trademarks in respect of the term
Green Trust. Although these trademarks disclaim rights in the individual words green and trust the
Panel is satisfied that in relation to the two words when used together the Complainant has established it has
rights in a trademark. The Panel holds that the Disputed Domain Name is identical to the GREEN TRUST
trademark. It is well established that where the specific top-level of a disputed domain name (in this case
.com) serves no purpose other than a purely technical one (contrast, for example, a domain name such as
<osram.lighting>), it may be ignored for the purpose of determining whether the disputed domain name is
identical or confusingly similar see for example Rollerblade, Inc. v. Chris McCrady, WIPO Case No.
D2000-0429. Accordingly the Complainant has established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
In the present case the Respondent does not claim to have any rights in the term Green Trust except by
having used that term for what he says is a bona fide parking page with sponsored links on it. The question
of whether use of a domain name for a parking page itself establishes a legitimate interest is considered in
WIPO Overview 2.0 of WIPO Panel Views on Selected UDRP Questions (WIPO Overview 2.0) at section
2.6:
Do parking and landing pages or pay-per-click links generate rights or legitimate interests in the disputed
domain name?
Panels have generally recognized that use of a domain name to post parking and landing pages or PPC links
may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising

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from a bona fide offering of goods or services [see also paragraph 3.8 below] or from legitimate
noncommercial or fair use of the domain name, especially where resulting in a connection to goods or
services competitive with those of the rights holder. As an example of such permissible use, where domain
names consisting of dictionary or common words or phrases support posted PPC links genuinely related to
the generic meaning of the domain name at issue, this may be permissible and indeed consistent with
recognized sources of rights or legitimate interests under the UDRP, provided there is no capitalization on
trademark value (a result that PPC page operators can achieve by suppressing PPC advertising related to
the trademark value of the word or phrase). By contrast, where such links are based on trademark value,
UDRP panels have tended to consider such practices generally as unfair use resulting in misleading
diversion.
In the present case the Panel finds that there is no capitalization upon the Complainants trademark value
and is therefore inclined to find that the Respondent has established a legitimate interest. However, in view
of the Panels finding on bad faith issues (see below) it is not necessary for the Panel to reach a conclusion
on this issue.
C. Registered and Used in Bad Faith
The Panel finds that there is no evidence to suggest that the Disputed Domain Name has been registered or
used in bad faith. The Respondent says he had never heard of the Complainant or its use of the term
Green Trust when he registered the Disputed Domain Name. Given the evidence before the Panel that
account seems to the Panel to be entirely credible and the Panel sees no reason to doubt the Respondents
statement. The term greentrust comprises two ordinary English words, green and trust which are
conjoined. The Panel considers this conjoined term could readily be independently derived and sees no
reason to doubt the Respondents account that this is what he did long before he had any knowledge of the
Complainant.
In reaching this conclusion the Panel has considered the Complainants case that the Respondent must have
had the Complaints use of the term Green Trust in mind when he registered the Disputed Domain Name.
The Panel finds that case to be wholly unconvincing. The Complainants evidence as to the nature and
extent of its reputation even within South Africa and adjoining territories is unsatisfactory in many respects.
Specifically:
a.

It is not entirely clear to the Panel that the term Green Trust is used by the Complainant as a
trademark in the conventional sense in order to promote its business or its own products or services.
It certainly is not used by the Complainant to promote directly the provision of banking or financial
services under that name. On the evidence available it is used to refer to various activities of an
environmental or philanthropic nature that are in some way promoted or supported by the
Complainant, often in conjunction with a third party. If this was the only difficulty with the
Complainants case the precise nature of the Complainants activities in this regard might merit further
consideration however in the light of the further difficulties with the Complainants case (below) the
point is moot.

b.

Although the registered trademarks relied upon date from 1990 it is far from clear to the Panel that the
other evidence the Complainant has presented establishes use by the Complainant of the term Green
Trust which predates the Respondents registration of the Disputed Domain Name. Certainly at least
some of the promotional material relied upon is of a later date, as it contains references to specific
events with dates later than 2004. The various domain names that the Complainant owns were all
registered after 2004, which tends to suggest that its activities in relation to the Green Trust may
postdate 2004 or at least be of a different and more extensive nature after that date. Overall the Panel
is left in the dark as to the extent of the Complainants reputation even in South Africa in 2004 when
the Disputed Domain Name was registered.

c.

In many cases the term Green Trust is used in conjunction with other terms, such as Nedbank, or
World Wildlife Fund. It seems to be commonly referred to as The WWF Nedbank Green Trust. The

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Panel is unable to assess with any confidence what reputation the Complainant has in the term Green
Trust on its own.
However ultimately these issues do not matter. Even if the Complainants evidence is taken at face value all
that it establishes is a reputation in the term Green Trust in South Africa and adjoining countries. This is
implicitly acknowledged in the Complaint, which states at page 10, section 7: the Green Trust trade mark
enjoys a substantial reputation not only in South Africa but also in many African countries.
No case is advanced by the Complainant to suggest that it has had at any time any reputation outside Africa
in the term Green Trust and no direct evidence is adduced to suggest why the Respondent, a domain name
registrant in the United States, would or should have known of an entity that operates only in southern Africa
or trademarks registered only in southern Africa. The Complainants case in this regard relies entirely on
inference based on three matters.
The first is a Google search, which shows the Complainants Green Trust as being the most prominent result
again however the terminology varies with the first entry for example being for the WWF Nedbank Green
Trust. In any event the Panel does not find this search convincing in establishing any type of reputation in
areas outside Southern Africa. The search was clearly carried out in South Africa on Googles local South
African site, and as is well known the results obtained are likely to be influenced by where the search is
carried out. Different results will be obtained elsewhere as is demonstrated by the Respondent who exhibits
a Google search that he has carried out in the United States. Strikingly in the Complainants search the first
page of results features multiple references to the Complainants Green Trust whilst in the Respondents
search quite different entries are shown the first entry for example concerns <greentrustcash.com>, which
appears to be a United States business, while any entry relating to the Complainant (again as WWF
Nedbank Green Trust) is not found until the third page.
The second limb of the Complainants inferential case is based upon the content of the parking page that is
linked to the Disputed Domain Name. Again as is well known such pages are typically automatically
generated by software that uses a range of factors including the lexicological significance of the terms
making up the domain name to generate links to third party sites. They may also be generated on the fly
and the content displayed may well depend upon the precise characteristics of the computer being used to
access the page in question, including its geographical location and any cookies present in its caches. The
Panel finds it entirely unsurprising that in this case the search results the Complainant has produced include
links to sites (which appear to be South African, but are not sites of the Complainant) offering personal loans,
accounting services, financing and refinancing services, and online financial education as well as a link to a
site called Nedbank Home Loans which is presumably that of the Complainant (though not so far as can be
discerned having any Green Trust-connection).
Finally the Complainant has also relied upon what it says is the Respondents conduct as a serial registrant
of abusive domain names. The Panel finds the Complainants original case in this regard unsatisfactory and
notes that no explanation has been provided as to how the double mistake (as to both the number of
previous cases, and the content of the exhibited schedule) occurred, nor has any apology been offered,
beyond an acceptance in the Supplemental Filing that the error was regrettable. Be that as it may, the case
now advanced by the Complainant is that three previous findings against the Respondent show him to have
a propensity for filing abusive registrations. One of these cases (Panthers BRHC L.L.C. v. Gregg
Ostrick/GNO, Inc., WIPO No. Case D2005-0681) seems to the Panel to be finely balanced and one member
of the three-member panel dissented from the majority decision (a point not pointed out by the Complainant
in the present case). The two other cases (which concerned the domain names <inframation.com> and
<queenelizabeth2.com>) are not in the Panels view sufficiently egregious in the context of the Respondent
who trades in domain names and who owns a large portfolio of such domain names, as to lead the Panel to
infer he is engaged in a deliberate business practice of registering domain names knowing them to be
abusive. Certainly in the present case the other factors in the Respondents favour significantly outweigh the
inference (if any) to be derived from these previous cases.

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Accordingly the Panel concludes there is no credible evidence to establish bad faith on the part of the
Respondent and the Complainant has failed to establish that the third condition of paragraph 4(a) of the
Policy has been fulfilled.
D. Reverse Domain Name Hijacking
Several circumstances of this case have led the Panel to consider whether the filing of the Complaint
constitutes using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain
name - see the Rules, paragraph 1, definition of Reverse Domain Name Hijacking (RDNH). Paragraph
15(e) of the Policy provides that if after considering the submissions the Panel finds that the complaint was
brought in bad faith, for example in an attempt at RDNH or was brought primarily to harass the domain name
holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an
abuse of the administrative proceeding. The Rules, paragraph 15(e), call for this analysis even when the
Respondent has not expressly requested a finding of abuse - seeTimbermate Products Pty Ltd v. Domains
by Proxy, LLC / Barry Gork, WIPO Case No. D2013-1603.
The Panel considers that whether a finding of RDNH is appropriate depends upon whether or not the
Complainant should have appreciated its case had no reasonable prospect of success. See WIPO Overview
2.0, paragraph 4.17.1 See also for example Yell Limited v. Ultimate Search, WIPO Case No. D2005-0091
where the panel noted that whether a complainant should have appreciated at the outset that its complaint
could not succeed, will often be an important consideration.
In the view of the Panel, the present Complaint is one where the case as advanced by the Complainant had
no reasonable prospects of success. There are multiple defects in the case. The following are the most
obvious:
a.

The Complainant should have appreciated that establishing registration and use in bad faith in respect
of a domain name which was a conjoining of two ordinary English words with obvious meanings
relevant to environmental and financial products or services was likely to involve a factual situation
where a wide number of persons were using those words as names and/or trademarks. The
Complainant appears to have ignored this issue.

b.

The Complaint is based upon evidence that at most establishes the Complainant had a reputation in
the term Green Trust in South Africa and adjoining countries. There is no evidence at all of any
reputation elsewhere in the world, nor indeed is there even any assertion that such a reputation exists.
As such no case at all was advanced as to why the Respondent, who is based in the United States,
either was, or should have been, aware of the Complainant or its Green Trust-operation.

c.

Even a cursory search focused on international aspects should have enabled the Complainant to
appreciate that there were numerous users of the term Green Trust in many different jurisdictions
round the world and that there was no reason at all to conclude that the Complainants entirely
southern African based reputation gave it any rights in the term outside its local area.

d.

Instead the Complainants entire case was based on three inferential matters (1) Google search
results for the term Green Trust; (2) the contents of the parking page operated at the Disputed
Domain Name and (3) the Respondents conduct in having a history of abusive registrations.

e.

So far as the Google search results are concerned the Complainants case fails to take account of the
fact that the results likely to be obtained are entirely dependent on where in the world the relevant
search is carried out the fact that a search carried out in South Africa prominently displays results
relating to the Complainant does not mean a search carried out in other jurisdictions will have the
same results, as the Respondent has convincingly demonstrated.

"WIPO panels have found Reverse Domain Name Hijacking in circumstances including where: the complainant in fact knew or clearly

should have known at the time that it filed the complaint that it could not prove one of the essential elements required by the UDRP."

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f.

So far as the parking page is concerned the Complainant has failed to appreciate that the content
displayed by such a page is likely to be automatically generated and depend upon a number of
factors, including the lexicological significance of the words making up the Disputed Domain Name
and the geographical location of the place from where the page is accessed. Given the fact that
green and trust are ordinary English words with obvious direct relevance to environmental and
financial products or services the Complainant should have appreciated that the search results in
question do not establish that the Respondent had the Complainant in mind either when he registered
the Disputed Domain Name or at any other time.

g.

So far as the Respondents alleged history of abusive registrations is concerned the Complainant
should have properly identified the numbers involved in its Complaint as originally filed and should
then have appreciated that these alone were not likely to persuade a Panel to find in its favor.

Given the nature of the Policy and the fact that the Complainant was legally advised by competent counsel
this was a case which the Complainant should have appreciated had no reasonable prospects of
demonstrating registration in bad faith. The Panel therefore finds that the Complaint was brought in bad faith
and constitutes an abuse of the administrative proceeding.

7. Decision
For the foregoing reasons, the Complaint is denied. The Panel finds that the Complaint was brought in bad
faith and constitutes an abuse of the administrative proceeding.

Nick J. Gardner
Presiding Panelist

Tony Willoughby
Panelist

Richard G. Lyon
Panelist
Date: May 18, 2016