Complainant is Confederation Nationale du Credit Mutuel of Paris, France, represented by MEYER & Partenaires, France.
Respondent is HMD HMDA, HMDA of Malawi. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 12, 2013. On July 12, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 12, 2013, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on July 24, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 13, 2013. Due to an administrative oversight regarding the annexes to the Complaint were forwarded to the parties on July 30, 2013, and the due date for Response was extended to August 19, 2013. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 22, 2013.
The Center appointed Roberto Bianchi as the sole panelist in this matter on September 3, 2013. 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
Complainant is the governing body of Crédit Mutuel Banking Group, a leading financial institution in France.
Complainant owns, inter alia, the following marks:
CREDIT MUTUEL, French semi-figurative trademark No. 1475940, registered on July 8, 1988 in international classes 35 and 36, renewed on May 15, 1998;
CREDIT MUTUEL, French semi-figurative trademark No. 1646012, registered on November 20, 1990 in international classes 16, 35, 36, 38 (internet services) and 41, renewed on November 20, 2000;
CREDIT MUTUEL, semi-figurative International trademark No. 570 182, registered on May 17, 1991 in international classes 16, 35, 36, 38 and 41, designating Benelux, Italy and Portugal.
The disputed domain name was registered on February 17, 2013. 5. Parties’ Contentions A. Complainant
Complainant contends that it has trademark rights in the CREDIT MUTUEL mark, and that the disputed domain name is confusingly similar to this mark.
Complainant also contends that Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name. Respondent is not related in any manner to Complainant. Respondent does not have any authorization or license from Complainant to use or register the trademark CREDIT MUTUEL as a domain name. Respondent is neither a licensee, nor an employee or a subsidiary, or a subcontract or of Complainant. Complainant also alleges that Respondent is not linked with Électricité De France (“EDF”) regarding a partnership existing between EDF and Complainant.
Complainant contends that Respondent registered and is using the disputed domain name in bad faith. Respondent first used the disputed domain name to launch a phishing attack against the Crédit Mutuel Group by reproducing Complainant’s mark CREDIT MUTUEL LA BANQUE A QUI PARLER and its graphic design on which Complainant has copyright. Under this cover Respondent presented empty fields to be filled by Internet users which were encouraged to enter personal data. On the corresponding website several texts insisted that this was a secured website to emphasize its credibility. B. Respondent
Respondent did not reply to Complainant’s contentions, and is in default. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant has shown to the satisfaction of the Panel that it has rights in the registered mark CREDIT MUTUEL. See “Factual Background” above. The disputed domain name consists of this mark and the EDF mark and acronym of Électricité de France, a public utility company. Also, in the domain name a hyphen between the CREDIT MUTUEL and the EDF marks, and the gTLD “.com”, are added. The Panel agrees with the panel in Saab Automobile AB et al. v. Joachim Nordberg,WIPO Case No. D2000-1761, relating to and , that “the domain names are a combination of two marks does not mean that the Policy cannot be applied. See also Volkswagen AG v. Swiss Recruitment,WIPO Case No. D2013-0534, relating to (“Thirdly, the Panel also notes that it has already been considered by the panel in Bayrishe Motoren Werke AG v. Null,WIPO Case No. D2002-0937, that the combination of two marks in the same expression should deserve entirely the same type of protection that is envisaged for a single mark”.)
It is well established that the addition of a hyphen and the technically necessary gTLD should be disregarded when comparing a domain name with a mark.
In conclusion, the Panel finds that the disputed domain name is confusingly similar to Complainant`s CREDIT MUTUEL mark. B. Rights or Legitimate Interests
The Panel notes that Respondent offers no explanation for the fact that the disputed domain name is composed of two well known French marks. The first mark is Complainant’s registered CREDIT MUTUEL mark. The second mark is EDF, an acronym for Électricité de France, the French electric utility company. In this context, the Panel notes that according to Wikipedia, EDF is the world’s largest producer of electricity (data corresponding to 2011).
As shown by Complainant, this combination of marks reflects the existing partnership between both companies to jointly favor investment by individuals in solar energy projects, while there is no element showing that Respondent is in any manner related to such partnership.
Further, there is no evidence that Respondent is known, commonly or otherwise, by the disputed domain name or by any of its components pursuant to Policy paragraph 4(c)(ii). Instead, according to the Registrar’s WhoIs data, Respondent’s is identified as “HMD HMDA”.
Nor is there any evidence that Respondent, before notice of the dispute, made any use, or any demonstrable preparation to use, the disputed domain name in connection with a bona fide offering of goods or services, pursuant to Policy paragraph 4(c)(i). In fact, Complainant has shown that Respondent has used the website at the disputed domain name in such a manner that it appeared to be an official site of Complainant, where personal data of Internet users were captured by Respondent in a phishing or other reprehensible scheme. Clearly, such an activity is not connected to a bona fide offering, and clearly is illegitimate. See the panel findings on “bad faith” below. Nor can such illegitimate use constitute a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant’s mark pursuant to Policy paragraph 4(c)(iii).
In absence of any evidence in favor of Respondent and in view of its default, the Panel concludes that Respondent lacks any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Complainant has shown that it had registered its CREDIT MUTUEL mark many years before Respondent registered the disputed domain name. Complainant has also shown that its CREDIT MUTUEL mark is well known. In addition, the Panel notes that EDF is the acronym of, and the mark owned by Électricité de France, the electricity company. Accordingly, the Panel concludes that Respondent knew or must have known of Complainant and its CREDIT MUTUEL mark at the time of registering the disputed domain name. Also, it has been evidenced that a partnership existed between Complainant and Électricité de France and that this fact was known by the public and therefore must likely have been known by Respondent at the time of the registration of the disputed domain name. Thus, the Panel cannot but conclude that Respondent targeted Complainant’s CREDIT MUTUEL mark when it registered the disputed domain name.
In the Panel’s opinion, it has been sufficiently shown that Respondent used the website at the disputed domain name to capture personal data from Internet users who connect their browsers to the website at the disputed domain name in the belief they are dealing with an official Internet address of Complainant and/or Électricité de France, in what appears a phishing scheme, or an otherwise illegitimate and reprehensible scheme.
The Panel agrees with previous panels that phishing is a use in bad faith of the disputed domain name. See for instance The Royal Bank of Scotland Group plc v. Secret Registration Customer ID 232883 / Lauren Terrado, WIPO Case No. D2012-2093 (“Use of a disputed domain name for the purpose of defrauding Internet users by the operation of a “phishing” website is perhaps the clearest evidence of registration and use of a domain name in bad faith. The fact that the website is currently inactive does not negate such a finding.”)
Also, the fact that presently the website at the disputed domain name appears to be inactive does not mean that this domain name is not being used in bad faith. In this regard, the Panel notes that several relevant circumstances taken into account by the panel in the most cited case Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 (finding that “being used in bad faith” is not limited to positive action, and that inaction is within the concept) are present in the instant case: a) Complainant’s mark is well known, b) there is no evidence of good faith use of the disputed domain name, c) Respondent appears to be concealing its true identity, d) Respondent provided false contact details, and e) Respondent’s present inactivity follows its use as a phishing or fraudulent website. In coincidence with Telstra, supra, the Panel cannot imagine any active use of the disputed domain name that would not be illegitimate, i.e. in bad faith.
In conclusion, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 7. Decision
For 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.
Roberto Bianchi
Sole Panelist
Date: September 16, 2013
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