WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Confédération nationale du Crédit Mutuel v. Eva Gonord Case No. D2008-1621 1. The Parties
The Complainant is Confédération nationale du Crédit Mutuel, of Paris, France, represented by Meyer & Partenaires, of France.
The Respondent is Eva Gonord, of Elbeuf, France. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 23, 2008. On October 24, 2008, the Center transmitted by email to Tucows a request for registrar verification in connection with the disputed domain name. After several reminders from the Center, on November 6, 2008, Tucows 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 11, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 1, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 2, 2008.
On December 10, 2008, the Center received by email a communication from the Complainant. On December 11, 2008, the Center acknowledged receipt.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on December 15, 2008. The Panel finds that it was properly constituted. 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 Confédération nationale du Crédit Mutuel (“Crédit Mutuel”), a French association registered under the law of July 1, 1901. Confédération nationale du Crédit Mutuel is the political and central body for the Crédit Mutuel Banking Group. Crédit Mutuel is the second French banking and insurance service group. At the same time, CREDIT MUTUEL is a widely known and distinctive trademark in France and all Europe.
From the evidence submitted by the Complainant, as annexes to the Complaint, the Complainant is the registered owner of a large number of trademarks consisting or including the wording “Crédit Mutuel” in France and abroad.
- CREDIT MUTUEL, French semi-figurative trademark n° 1475940 of July 8, 1988 classes 35 and 36 of the 1957 Nice Agreement, renewed on May 15, 1998.
- CREDIT MUTUEL, French semi-figurative trademark n° 1646012 of November 20, 1990 in classes 16, 35, 36, 38 (internet services) and 41 of the Nice Agreement, renewed on November 20, 2000.
- CREDIT MUTUEL semi-figurative International trademark n° 570182 of May 17, 1991 in classes 16, 35, 36, 38 and 41 of the Nice Agreement, designating Benelux, Italy and Portugal.
These rights have been continuously used in commerce since their registration. 5. Parties' Contentions A. Complainant
Crédit Mutuel claims that the trademark CREDIT MUTUEL is entirely reproduced in the disputed domain name.
The only difference between the disputed domain name displayed and the trademark consists in the addition of the letter “e” between the words “crédit” and “mutuel”.
Previous decisions under the UDRP have held that this minor difference is insufficient to change the impression of the domain name being confusingly similar to the trademark. Furthermore, previous decisions under the UDRP have recognized that the absence of spaces or punctuation marks in the domain name which are present in the trademark, has to be ignored in assessing the question of identity or confusing similarity.
The Complainant also asserts that the suffix “.com” does not need to be taken into account while comparing the disputed domain name with a claimed trademark, as it is a technical and necessary part of the domain name with no distinguishing feature or legal significance.
Consequently, the Complainant claims that the disputed domain name is confusingly similar to its trademark CREDIT MUTUEL.
At the same time, the Complainant claims that the domain name has been registered by Gonord, Eva to take advantage of the Complainant's renown trademark to confuse and divert Internet users.
Furthermore, the Complainant claims that the Respondent registered the disputed domain name exclusively for the purpose of misleadingly diverting consumers in a “phishing” scheme which attempted to fraudulently obtain credit card and other personal information.
The Complainant says that the disputed domain name constitutes bad faith use. It could be said that the Respondent used the disputed domain name to obtain personal data, login and passwords, in a “phishing” scheme and thereafter to misappropriate funds kept by the Complainant's on behalf of its clients. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Procedural Issue
The Respondent sent a letter to the Complainant, where it alleged that it had not registered the disputed domain name and presented a claim for “fraudulent use of means of payment” and a claim for “identity theft” before the French police. Both claims have been translated into English by the Complainant.
As has already been said, the Complainant facilitated such communications to the Center. No formal Response has been lodged, and none of the Respondent's statements appear to be supported by the statement that they are “complete and accurate” as required by paragraph 5(b) of the Rules. The Respondent does not appear to have offered, to transfer the disputed domain name to the Complainant.
The Complainant confirmed its request to obtain the transfer of the disputed domain name. Accordingly, this Panel continues the procedure considering that no response has been filed. 7. Discussion and Findings
In order for the Panel to decide to grant the remedy of transfer of a domain name to a complainant under the Policy it is necessary that the complainant must prove, as required by Paragraph 4(a) of the Policy, that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
The fact that the respondent has not provided a response to the Complaint does not relieve the complainant of the burden of proving its case. In the absence of a response, paragraph 5(e) of the Rules expressly requires the panel to “decide the dispute based upon the complaint”. Under paragraph 14(a) of the Rules in the event of such a default the panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. The UDRP is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate.
Thus where a party fails to present evidence in its control, the panel may draw adverse inferences regarding those facts. (Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004; State of Wisconsin v. Pro-Life Domains, Inc.,WIPO Case No. D2003-0432). Here, since the Respondent has defaulted, it is appropriate to accept the facts asserted by the Complainant and to draw adverse inferences of fact against the Respondent. A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant appears to have made continuous use of its registered marks where CREDIT MUTUEL appears to be a distinctive element and has spent much time, money and effort promoting the mark and has established significant good will.
Previous panels have decided that “essential” or “virtual” indentity is sufficient to meet the first element (La Caixa D'Estalvis I Pensions de Barcelona v. Molina Georgesen,WIPO Case No. D2006-1615). Accordingly, in the present case, the addition of the letter “e” between the two words that compose the disputed domain name is not sufficient to distinguish the disputed domain name from the Complainant's trademark. Therefore, the Panel is prepared to accept the submission of the Complainant that the addition of the letter “e” to the Complainant's trademarks to form the disputed domain name is insignificant and consequently the disputed domain name is confusingly similar to the Complainant's trademark.
The Panel therefore concludes that the Complainant has satisfied the requirements of paragraph 4(a) (i) of the Policy. B. Rights or Legitimate Interests
The Panel finds that the Complainant has made a prima facie showing that the Respondent does not have rights or legitimate interests in the disputed domain name within the meaning of paragraph 4 (a) of the Policy.
This finding is based on the following, non-disputed circumstances brought forward by the Complainant.
There appears to be no indication in the file that the Respondent is commonly known by the disputed domain name.
The Complainant states it did not license, nor has authorization been granted to the Respondent.
The Respondent does not appear to be the owner of any trademark registration for the disputed domain name.
Crédit Mutuel is widely-known in France and Europe and holds the majority of the related trademarks.
Furthermore, the Respondent has not provided evidences of circumstances of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain name.
Under these circumstances, the Panel takes the view that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) of the Policy is also satisfied C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:
(i) circumstances indicating that respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that respondent has engaged in a pattern of such conduct; or
(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent's website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of respondent's website or location or of a product.
The Panel has considered the Complainant's assertions and evidence with regard to the Respondent's registration and use of the disputed domain name in bad faith. By not submitting a response, the Respondent has failed to invoke any circumstances that could demonstrate that it did not register and use the domain name in bad faith.
The Complainant has also established that its trademarks have been used extensively in Europe and throughout the world and that the Complainant's trademarks are valuable. Therefore, it is difficult to imagine that the Respondent could have been unaware of the notoriety of the trademarks in issue when registering and using the disputed domain name.
Furthermore, there appears to be evidence of the situation described in paragraph 4 of the Policy. Thereby, the Respondent registered the disputed domain name in bad faith also, as indicated by the Respondent's use of the disputed domain name to engage in “phishing” and with the intent to attract Internet users for commercial gain.
Furthermore, in regards to the Respondent's intentions regarding the use of its website, ultimately the Respondent is, as previous UDRP panels have held, is responsible for the content on its website.
Thus, the Panel finds for the Complainant on this third element of the Policy. 8. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Manuel Moreno-Torres
Sole Panelist
Dated: December 22, 2008
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