The Complainant is BforBank SA of Paris, France, represented internally.
The Respondent is Dipika Sharma of Noida, India. 2. The Domain Name and Registrar
The disputed domain name is registered with BigRock Solutions Limited (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 25, 2016. On February 25, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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. An amendment to the Complaint was received by the Center on March 7, 2016.
The Center verified that the Complaint together with the amendment to 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 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 4, 2016. A supplemental filing from the Complainant was received by the Center on March 23, 2016 requesting the transfer of the disputed domain name instead of its cancellation as the choice of remedy. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 6, 2016.
The Center appointed Mihaela Maravela as the sole panelist in this matter on April 12, 2016. 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 BforBank SA (a public limited company under French law), owner of, inter alia, International trademark no. 1028094 BFORBANK (device), registered on November 26, 2009 for services in international class 36.
The disputed domain name was registered on January 8, 2016. The Panel visited the disputed domain name on April 26, 2016, and observed that the disputed domain name resolves to the Registrar-provided “Domain Search” page featuring domain name auctions and sales. It is also mentioned that “ is coming soon”. 5. Parties’ Contentions A. Complainant
The Complainant contends that it has well-established trademark rights in a significant number of countries and that the disputed domain name is confusingly similar to the Complainant’s trademarks.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name and refers to the conditions of the Policy in this respect. Moreover, the Complainant asserts that the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Noting the fact that the Respondent has not filed a Response, the Panel shall consider the issues present in the case based on the statements and documents submitted to the Panel by the Complainant.
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraph 15(a) of the Rules.
Applied to this case, paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Supplemental Submission
A supplemental filing from the Complainant was received by the Center on March 23, 2016. In said filing the Complainant requested that the disputed domain name be transferred to the Complainant instead of being cancelled. The Panel accepts this change in requested remedy. For a similar decision, see Koninklijke Philips Electronics N.V. v. Cho Sanghyuck,WIPO Case No. D2002-0426. B. Identical or Confusingly Similar
The Panel must find that the Complainant has a trademark or service mark and that the disputed domain name is identical or confusingly similar to that trademark or service mark for the Complainant to succeed. Here, the Complainant has demonstrated inter alia its ownership of International trademark no. 1028094 BFORBANK (device). The Complainant’s trademark rights predate the registration of the disputed domain name (January 8, 2016).
As regards the question of identity or confusing similarity for the purpose of the Policy, it requires a comparison of the disputed domain name to the trademark. Here the disputed domain name includes the term “banking” instead of the term “bank” from the trademark of the Complainant. However, the differences between both terms are insufficient to avoid a finding of confusing similarity under the first element of the Policy.
It is well accepted by UDRP panels that a generic Top-Level Domain (“gTLD”), such as “.com”, is typically ignored when assessing identity or confusing similarity between a trademark and a domain name.
The Panel therefore finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied. C. Rights or Legitimate Interests
Under paragraph 4(c) of the Policy, any of the following circumstances, if found by the Panel, may demonstrate a respondent’s rights or legitimate interests in a disputed domain name:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the disputed domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy is summarized in paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), which states: “[…] a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If a respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP […]”.
In the present case the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights. The Complainant has established that it is the owner of the BFORBANK trademark and claims that the Complainant has not licenced or otherwise authorised the Respondent to use the BFORBANK trademark. There is no evidence indicating that the Respondent is commonly known by the disputed domain name or the name “Bforbank” (see for a similar finding ALDI GmbH & Co. KG v. zhou xiaolei,WIPO Case No. D2014-0957).
By not submitting a Response, the Respondent has failed to invoke any circumstances which could demonstrate any rights or legitimate interests in the disputed domain name. See for a similar finding KOC Holding A.S. v. VistaPrint Technologies Ltd,WIPO Case No. D2015-1910.
Further, as discussed in section D below, the Panel also finds that the Respondent is not engaged in a bona fide offering of goods or services. There is also no evidence in the record that the Respondent’s use of the disputed domain name is a legitimate noncommercial or fair use.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. D. Registered and Used in Bad Faith
According to paragraph 4(a)(iii) of the Policy, the Complainant must establish that the disputed domain name has been registered and is being used in bad faith. The Policy indicates that certain circumstances specified in paragraph 4(b) of the Policy may, “in particular but without limitation”, be evidence of the disputed domain name’s registration and use in bad faith.
The fact that the disputed domain name is confusingly similar with the Complainant’s trademark BFORBANK and that the said trademark is intensively used over the Internet (see Bforbank S.A. v. Transure Enterprise Ltd/A Domain Privacy,WIPO Case No. D2010-1300) indicates not only that the Respondent was aware of the Complainant’s business and trademark at the time of registration, but also that he registered the disputed domain name to mislead Internet users into thinking it is some way connected or affiliated with, or sponsored or endorsed by, the Complainant.
The Respondent provided no explanations for why he registered the disputed domain name.
The Respondent has failed to make to date any genuine use of the disputed domain name. The disputed domain name resolves to a passively held page with links related to the Registrar’s activities. The passive holding of a disputed domain name does not prevent a finding of use in bad faith. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. Further, the absence of any bona fide use of the disputed domain name at the very least results in a failure to rebut the inference noted above. See for a similar finding Guinness World Records Limited v. Solution Studio,WIPO Case No. D2016-0186.
In the Panel’s view these circumstances represent evidence of registration and use in bad faith of the disputed domain name. The Respondent failed to bring evidence as to the contrary. Consequently, the Panel ascertains that the disputed domain name was 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 the Complainant.
Mihaela Maravela
Sole Panelist
Date: April 26, 2016
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