Complainant is Credit Agricole S.A. of Paris Cedex, France, represented by Nameshield, France.
Respondent is Dick Weisz of Den Haag, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name is registered with Key-Systems GmbH dba . 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 5, 2010. On October 6, 2010, the Center transmitted by email to Key-Systems GmbH dba a request for registrar verification in connection with the disputed domain name. On October 7, 2010, Key-Systems GmbH dba transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on October 14, 2010.
On October 11, 2010, the Center issued a Language of Proceeding notification, inviting comments from the parties. Complainant submitted a request that English be the language of the proceeding on October 11, 2010. Respondent on October 16, 2010, requested the Center to proceed in Dutch. On October 21, 2010, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English and 2) accept a Response in either Dutch or English.
The Center verified that the Complaint together with the amendment thereto 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 Respondent of the Complaint, and the proceedings commenced on October 21, 2010 in English and Dutch. In accordance with the Rules, paragraph 5(a), the due date for Response was November 10, 2010. The Response was filed with the Center on November 10, 2010.
The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on November 17, 2010. 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.
As the Complaint was not filed in the language of the Registration Agreement and the Parties did not agree on the language of the administrative proceeding, the Panel may decide on the language of the administrative proceeding, having regard to the circumstances of the administrative proceeding. Indeed, paragraph 11(a) of the Rules reads: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”.
The Panel is satisfied that both parties speak and write English. Based on the evidence adduced before the Panel, the Panel finds Respondent, an individual of Dutch origin, to be proficient in the English language. On an online profile, Respondent indicated to be fluent in Dutch, English, German and French. The evidence shows that this profile was filled out in English. Respondent also posted on its blog an article in English, written by a third party. This Panel finds that these elements show that Respondent has a sufficient understanding of English.
Accordingly, the use of the English language in the proceedings would not be prejudicial to the interests of Respondent, whereas it would be a disadvantage for Complainant to be forced to translate the Complaint. Therefore, the Panel decides to use the English language in the present proceedings (See e.g., The Dow Chemical Company v. Hwang Yiyi,WIPO Case No. D2008-1276, decision according to which, where a respondent can clearly understand the language of the complaint, and the complainant would be disadvantaged by being forced to translate, the language of proceedings can remain the language of the complaint, even though it is different to the language of the Registration Agreement).
Nevertheless, Respondent argues only to be able to speak English, but not to be proficient in writing. According to Respondent, this makes it impossible for him to correspond in English in the instant case. Hereupon, Respondent filed a succinct response in Dutch to the Complaint. Dutch being the mother language of the Panelist, and “in order to procure for the parties a fair and reasonable opportunity to respond, exercise their rights and to present their respective cases, and that both parties be treated with equality in these administrative proceedings, the Panelist has agreed to receive and consider all writs, information and documents submitted also in the [Dutch] language” (See Red Nacional de Ferrocarriles Españoles v. Jesús Hidalgo Álvarez,WIPO Case No. D2000-1025). 4. Factual Background
Complainant is a French banking and insurance service group. Complainant is the holder of a number of trademarks consisting of, or including the words “Crédit Agricole” in various countries throughout the world. Complainant shows to be the holder of the following CRÉDIT AGRICOLE trademarks:
- CRÉDIT AGRICOLE + design, registered as an international trademark under number 525634 on July 13, 1988, and duly renewed;
- CA CRÉDIT AGRICOLE + design, registered as an international trademark under number 441714 on October 25, 1978, and duly renewed;
- CA CRÉDIT AGRICOLE + design, registered in France under number 98747768 on August 27, 1998 and duly renewed;
- CA CRÉDIT AGRICOLE + design, registered in France under number 1381907 on November 28, 1986 and duly renewed;
- CRÉDIT AGRICOLE BANK, registered in France under number 3409869 on February 8, 2006;
- LE CRÉDIT AGRICOLE, registered in France under number 3409878 on February 8, 2006;
- CRÉDIT AGRICOLE, registered in the Benelux under number 620336 on October 9, 1997 and duly renewed.
It is stated in the WhoIs records that Dick Weisz, Respondent in the instant case, is the current holder of the disputed domain name , which was registered on November 8, 2006 with Key-Systems GmbH dba .
The disputed domain name redirects to a parking page, showing an advertisement for registering domain names. 5. Parties’ Contentions A. Complainant
Complainant considers the disputed domain name to be identical or confusingly similar to the trademarks and service marks in which it claims to have rights. Complainant further claims that Respondent has no rights or legitimate interests in respect of the disputed domain name. According to Complainant, Respondent has not used the disputed domain name since its registration. Finally, Complainant considers that the disputed domain name was registered and being used in bad faith. B. Respondent
Respondent argues that the disputed domain name was not registered in bad faith. According to Respondent, it is planned to use the website as a platform for Dutch farmers who want to start farming in France and seek contact with local farmers. According to Respondent, various farmers are in search for information about credits and agricultural products. Respondent argues that this was the reason why he chose the French words for, according to him, “credit” and “agricultural products”. 6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer a domain name. As the proceedings are administrative, the standard of proof is the balance of probabilities.
Thus for Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that:
1. The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
2. Respondent has no rights or legitimate interests in respect of the disputed domain name; and
3. The disputed domain name has been registered and is being used in bad faith.
The Panel will therefore deal with each of these requirements in turn. A. Identical or Confusingly Similar
Complainant must first establish that there is a trademark or service mark in which it has rights. Since Complainant is the holder of the widely known CRÉDIT AGRICOLE trademark that is used in connection with banking and insurance services, it is clearly established that there is a trademark in which Complainant has rights.
The Panel considers the only difference between the disputed domain name and Complainants trademark, the addition of a hyphen in between the words “credit” and “agricole”. According to the Panel, the addition of a hyphen and the absence of the accent on the letter “e” are insufficient to avoid confusing similarity, as such minor modifications to a trademark do not diminish in any significant way the likelihood of confusion between the disputed domain name and Complainant’s trademark (See e.g., Kabushiki Kaisha Toshiba dba Toshiba Corporation v. WUFACAI,WIPO Case No. D2006-0768; Fort Knox National Company v. Ekaterina Phillipova,WIPO Case No. D2004-0281).
Therefore, the Panel finds that the disputed domain name is confusingly similar with Complainant’s CRÉDIT AGRICOLE trademark.
Accordingly, Complainant has made out the first of the three elements that it must establish. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, Complainant has the burden of establishing that Respondent has no rights or legitimate interests in respect of the domain name.
It is established case law that it is sufficient for Complainant to make a prima facie showing that Respondent has no right or legitimate interest in the domain name in order to place the burden of rebuttal on Respondent. (See: Champion Innovations, Ltd. v. Udo Dussling (45FHH),WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
The Panel notes that Respondent has not been commonly known by the disputed domain name and that Respondent has not acquired trademark or service mark rights. Respondent’s use and registration of the disputed domain name was not authorized by Complainant. There are no indications that a connection between Complainant and Respondent existed.
Moreover, the Panel is of the opinion that Respondent is not making a legitimate non-commercial or fair use of the disputed domain name. In fact, Respondent is not making any use of the disputed domain name at all. According to the Panel, the passive holding or non-use of a domain name is, in appropriate circumstances, evidence of a lack of rights or legitimate interests in the domain name (See American Home Products Corporation v. Ben Malgioglio,WIPO Case No. D2000-1602; Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci,WIPO Case No. D2000-1244; Paws, Inc. v. , NAF Claim No. 97328; Victoria’s Secret et al v. This Domain Name For Sale, NAF Claim No. 96486). C. Registered and Used in Bad Faith
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith (See e.g. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052).
Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. Among these factors demonstrating bad faith is the registration of the domain name in order to prevent the holder of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the domain name holder has engaged in a pattern of such conduct.
1. Bad Faith Registration
In the instant case, the Panel finds that Respondent must have had knowledge of Complainant’s rights in the CRÉDIT AGRICOLE trademark at the moment he registered the disputed domain name, since Complainant’s trademark is a widely known trademark. The Panel also finds that Respondent’s awareness of Complainant’s trademark rights at the time of registration suggests bad faith. (See Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org., and Pokemon Fans Unite, WIPO Case No. D2001-1070, where POKÉMON was held to be a well-known mark of which the use by someone without any connection or legal relationship with the complainant suggested opportunistic bad faith; BellSouth Intellectual Property Corporation v. Serena, Axel,WIPO Case No. D2006-0007, where it was held that the respondent acted in bad faith when registering the disputed domain name, because widespread and long-standing advertising and marketing of goods and services under the trademarks in question, the inclusion of the entire trademark in the domain name, and the similarity of products implied by addition of telecommunications services suffix (“voip”) suggested knowledge of the complainant’s rights in the trademarks).
Moreover, the act of adding a hyphen and the absence of an accent on the letter “e” in the disputed domain name constitute in the Panel’s view a deliberate attempt by Respondent to trade on imperfect typing or carelessness by an Internet user when looking for information on Complainant. According to the Panel, the registration of a domain name with slight and typographical variations to the widely known mark CRÉDIT AGRICOLE constitutes typosquatting which in this Panel’s view in itself evidences bad faith. (See A, Inc. v. Steven Newman a/k/a Jill Wasserstein a/k/a Pluto Newman,WIPO Case No. D2006-0517; ESPN, Inc. v. XC2,WIPO Case No. D2005-0444).
The Panel finds that Respondent must have had knowledge of Complainant’s rights in the CRÉDIT AGRICOLE trademark at the moment he registered the disputed domain name, since Respondent had no rights or legitimate interest in the disputed domain name which could make Respondent come up with the disputed domain name by himself. Since the registration of the disputed domain name by Respondent constitutes typosquatting, it is established that the disputed domain name was registered in bad faith.
2. Bad Faith Use
In the instant case, Respondent is passively holding the disputed domain name. The passive holding of a domain name can constitute bad faith use, especially when combined with other factors such as the respondent preventing a trademark or service mark holder from reflecting its mark in a corresponding domain name, the failure of the respondent to respond to the complaint, the concealment of identity, etc. (See e.g., Telstra Corporation Limited, supra; Myer Stores Limited v. Mr. David John Singh,WIPO Case No. D2001-0763).
Also typosquatting can be seen as a factor evidencing that the passive holding of a domain name constitutes bad faith, see eDreams, Inc. v. Private Whois,WIPO Case No. D2009-1507: “If […] Respondent had a bona fide intent to use the disputed domain name it had plenty of time during the ensuing four years since registration to do so but chose to do nothing”. Moreover, Respondent remains without reasonable explanation for inactivity in development of the website at the disputed domain name. These elements suggest bad faith use of the disputed domain name. Furthermore, since the registration of the disputed domain name by Respondent constitutes typosquatting, it is established that the disputed domain name has not only been registered, but is also used in bad faith. 7. 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 disputed domain name be transferred to Complainant.
Flip Jan Claude Petillion
Sole Panelist
Dated: December 1, 2010
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