The Complainant is Confederation Nationale Du Credit Mutuel of Paris, France, represented by MEYER & Partenaires, France.
The Respondent is Name Redacted1 . 2. The Domain Name and Registrar
The disputed domain name is registered with Enetica (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 23, 2016. On August 23, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 31, 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 September 1, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 21, 2016. A communication from the named Respondent was received by the Center on September 7, 2016. No formal Response has been submitted.
The Center appointed William R. Towns as the sole panelist in this matter on September 28, 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 a global provider of banking and financial products and services headquartered in France. The Complainant is the holder of two French trademark registrations for CREDIT MUTUEL (No. 1475940, filed July 7, 1988; and No. 1646012, filed November 20, 1990); a European Union Trade Mark registration (No. 9943135, registered on Oct. 20, 2011), and an international registration for CREDIT MUTUEL (No. 570183, registered on May 17, 1991) designating Benelux, Italy and Portugal. The Complainant’s CREDIT MUTUEL mark has been recognized as a well-known mark in Confederation Nationale du Credit Mutuel v. Philippe Marie,WIPO Case No. D2010-1513; and Confédération Nationale du Crédit Mutuel v. Mariano Jackline and Alex Leparox,WIPO Case No. D2013-2134.
The disputed domain name was registered on February 4, 2015, according to the relevant WhoIs records maintained by the concerned Registrar. The disputed domain currently does not resolve to an active website, and there is no indication in the record of prior active use of the disputed domain name with a website. On September 7, 2016, the named Respondent contacted the Center to advise that the email address to which the Complaint had been sent was not her email address, that consequently she had not received a copy of the Complaint, and that she was not aware of the disputed domain name. According to the Complainant, its investigation indicates identity theft is likely. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name is confusingly similar to its CREDIT MUTUEL mark, which the Complainant submits is well-known. According to the Complainant, the additional “t” in the disputed domain name does not serve to distinguish the disputed domain name from the Complainant’s mark. The Complainant asserts that the misspelling of the Complainant’s CREDIT MUTUEL mark in the disputed domain name is intentional and constitutes typosquatting.
The Complainant maintains that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. The Complainant emphasizes that the Respondent is in no manner related to the Complainant or its business, has not been commonly known by the disputed domain name, and has not been licensed or otherwise authorized to use the Complainant’s CREDIT MUTUEL mark. The Complainant further notes that the Respondent has neither used the disputed domain name in connection with a bona fide offering of goods or services nor made any legitimate noncommercial or other fair use of the disputed domain name.
The Complainant asserts that the Respondent registered and is using the disputed domain name in bad faith. In view of the well-known character and strong reputation of the Complainant’s CREDIT MUTUEL mark in the field of banking and financial services, the Complainant submits that the Respondent must have been aware of the Complainant’s rights in the mark when registering the disputed domain name. The Respondent asserts that the addition of the single letter “t” constitutes typosquatting and is evidence of bad faith, citing Confédération Nationale du Crédit Mutuel v. Laycose Gernadt,WIPO Case No. D2013-1438 (omission of first “e” in constitutes bad faith practice of typosquatting).
The Complainant submits that the Respondent’s apparent passive holding of the disputed domain name does not preclude a finding of bad faith registration and use in the circumstances of this case. The Complainant provides evidence that email servers have been activated for the disputed domain name. According to the Complainant, while it is difficult to conceive of any legitimate use that could be made of the disputed domain name as an email address, it is certainly plausible that the disputed domain name could be used for activities such as spamming, phishing or other fraudulent activity. The Complainant cites as examples Credit Industriel et Commercial S.A. v. Zabor Mok,WIPO Case No. D2015-1432, and Confederation Nationale du Credit Mutuel v. Fernand Macia / Registration Private / Domains By Proxy, LLC DomainsByP,WIPO Case No. D2015-1699. B. Respondent
The Respondent did not submit a formal reply, but as noted above the named Respondent informed the Center by email on September 7, 2016, that the email address to which the Complaint was sent was not her email address. 6. Discussion and Findings A. Scope of the Policy
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store,WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber-Stephen Products Co. v. Armitage Hardware,WIPO Case No. D2000-0187. See Final Report of the First WIPO Internet Domain Name Process, April 30, 1999, paragraphs 169-177. The term “cybersquatting” is most frequently used to describe the deliberate, bad faith abusive registration of a domain name in violation of rights in trademarks or service marks. Id. at paragraph 170. Paragraph 15(a) of the Rules provides that the panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the panel deems applicable.
Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:
(i) the domain name is identical 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 with respect to the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Cancellation or transfer of the domain name is the sole remedy provided to the complainant under the Policy, as set forth in paragraph 4(i).
Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270. B. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s CREDIT MUTUEL mark, in which the Complainant has established rights through registration and use. In considering this issue, the first element of the Policy serves essentially as a standing requirement.2 The threshold inquiry under the first element of the Policy is largely framed in terms of whether the trademark and the disputed domain name, when directly compared, are identical or confusingly similar. In this case, the Complainant’s mark is clearly recognizable in the disputed domain name. The addition of a second “t” in the disputed domain name does not dispel the confusing similarity of the disputed domain name to the Complainant’s mark, and is strongly evocative of typosquatting.
Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in a domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) of the Policy has been made. It is undisputed that the Respondent has not been authorized to use the Complainant’s mark. The disputed domain name does not resolve to an active website, but there is evidence that the email servers for the disputed domain name have been activated, indicators of possible spamming or phishing, and typosquatting, all of which taken in together support an inference that the disputed domain name has been acquired for unlawful or fraudulent purposes.
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in a domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the 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 domain name, even if he has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent has not submitted a formal response to the Complaint, in the absence of which the Panel may accept all reasonable inferences and allegations in the Complaint as true. See Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009. The Panel has carefully reviewed the record in this case, and finds nothing therein that would bring the Respondent’s registration and use of the disputed domain name within any of the “safe harbors” of paragraph 4(c) of the Policy.
It is apparent that the Respondent was aware of the Complainant and the Complainant’s CREDIT MUTUEL mark when registering the disputed domain name. There is in the Panel’s view a high probability that the Respondent registered the disputed domain name with the aim of exploiting and profiting from the Complainant’s mark. The Respondent has registered a domain name that without question is confusingly similar to the Complainant’s CREDIT MUTUEL mark, and which if used as an email address could mislead consumers to believe that the communications they are receiving eminate from the Complainant.
Having regard to all of the relevant circumstances in this case, and in the absence of any explanation from the Respondent, the Panel concludes that the Respondent has not used or demonstrated preparations to use the disputed domain name in connection with a bona fide offering of goods or services, and that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers. There is no indication that the Respondent has been commonly known by the disputed domain name within the meaning of paragraph 4(c)(ii) of the Policy. In short, nothing in the record before the Panel supports a claim by the Respondent of rights or legitimate interests in the disputed domain name.
Accordingly, the Panel finds the Complainant have satisfied the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant (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) circumstances indicating that the respondent 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 the respondent has engaged in a pattern of such conduct; or
(iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its 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 the respondent’s website or location or of a product or service on its website or location.
The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. M, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230.
For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. In the Panel’s assessment, the Respondent plainly was aware of the Complainant’s CREDIT MUTUEL mark when registering the disputed domain name. In the absence of any explanation from the Respondent, the Panel concludes that the Respondent’s primary motive in relation to the registration and use of the disputed domain name was to capitalize on, or otherwise take advantage of, the Complainant’s trademark rights, by creating a likelihood of confusion with the Complainant’s mark with the intent to profit therefrom.
That the Respondent appears to be passively holding the disputed domain does not preclude a finding of bad faith registration and use in the circumstances of this case. See Telstra Corporation Limited v. Nuclear Marshmallows, supra. Considerations that supported a finding of bad faith in Telstra are present in this case as well. The Complainant’s mark is well-known, and there is no evidence of any actual good faith use of the disputed domain name by the Respondent, nor evidence of any demonstrable preparations to make a good faith use of the disputed domain name. Indeed, based on the record in this proceeding, the Panel cannot envision any legitimate or good faith use to which the disputed domain name could be put by the Respondent.
Accordingly, the Panel finds that the Complainant have satisfied the requirements of paragraph 4(a)(iii) of the Policy. 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 names, be transferred to the Complainant.
William R. Towns
Sole Panelist
Date: October 12, 2016
1 The Panel has decided that no purpose can be served by including the named Respondent in this decision, and has therefore redacted the Respondent’s name from the caption and body of this decision. The Panel has, however, attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name that includes the named Respondent, and has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding. However, the Panel has further directed the Center, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that Annex 1 to this Decision shall not be published due to exceptional circumstances. See Banco Bradesco S.A. v. FAST-12785241 Attn. B / Name Redacted,WIPO Case No. D2009-1788.
2 See “WIPO Overview of WIPO Panel Views and Selected UDRP Questions, Second Edition” (WIPO Overview 2.0), paragraph 1.2.
Full & Egal Universal Law Academy