Complainant is BinckBank N.V. of Amsterdam, Netherlands, represented by M. Vet, Netherlands.
Respondent is XP 24, Finances of Limassol, Cyprus. 2. The Domain Name and Registrar
The disputed domain name is registered with OVH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 6, 2017. On June 6, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 6, 2017 and June 20, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent a Complaint Deficiency Notification email to Complainant on June 21, 2017 providing the registrant and contact information disclosed by the Registrar. Complainant filed an amended Complaint on June 23, 2017. On June 21, 2017, the Center sent an email communication regarding the language of the proceeding in both French and English. On June 23, Complainant requested English to be the language of the proceeding and Respondent did not submit its comments.
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 Respondent in both English and French of the Complaint, and the proceedings commenced on June 27, 2017. On June 27, 2017, the Center received an email communication from the legal representative of registrant’s administrative contact (i.e. AMFF Ltd). On June 29 and July 3, 2017, the Center received two email communications from Complainant. In accordance with the Rules, paragraph 5, the due date for Response was July 17, 2017. Respondent did not file a formal Response, however it did send to the Center copies of two letters that it sent to the Complainant, see below. On July 19, 2017, the Center notified the Parties of the Commencement of Panel Appointment Process.
The Center appointed Richard Hill as the sole panelist in this matter on July 31, 2017. 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 owns rights in the mark BINCK dating back to at least 2010, with European Union Trademark Registration No. 008654683, registered on July 5, 2010, covering financial, banking, and insurance services.
The disputed domain name was registered on August 24, 2015.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent used the disputed domain name to offer banking and finance services that compete with those of Complainant. Further, it offered to sell the disputed domain name to Complainant. 5. Parties’ Contentions A. Complainant
Complainant states that it is an online bank for investors. It is the largest independent Dutch online broker and the fifth largest European independent online broker. It offers fast low-cost access to all the important financial markets around the world to allow clients to trade options, stock and other financial instruments. It also offers online advice and asset management services, online savings, and related services.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. The term “bink” is not connected in any way to Respondent’s name or services. Respondent (or its agent) requested trademark registration of BINKOPTION in France. Complainant opposed this request and the Respondent’s trademark registration for BINKOPTION was denied; the reason for the denial was that BINKOPTION would be confusingly similar to Complainant’s senior mark BINCK, because both marks refer to the same services, the element “bink” is similar to and phonetically identical to the senior mark BINCK, and the descriptive term “option” does not distinguish the marks sufficiently. Complainant attaches to its Complaint the August 10, 2016 decision of the French National Intellectual Property Institute (INPI) regarding this matter.
According to Complainant, the use of the term “bink” in the disputed domain name falsely suggests affiliation with Complainant, and the suggestion is amplified by the combination of “bink” with “option”: Complainant’s core business is to service clients in trading options. Thus the disputed domain name will be perceived as referring to a service of Complainant. And indeed Complainant has received notifications from clients that were actually misled by the disputed domain name.
Further, says Complainant, the actual confusion mentioned above shows that, by using the disputed domain name, Respondent intentionally attempted to attract for commercial gain Internet users to Respondent’s web site, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s web site and its services. Complainant provides a print out of the web site at the disputed domain name, showing an offer of services that compete with those of Complainant. B. Respondent
Respondent did not submit a formal Response. However, as stated above, the legal representative of the registrant’s administrative contact (i.e. AMFF Ltd) sent to the Center copies of two letters that its counsel sent to Complainant’s counsel. Those letters are in English. They are dated June 27, 2017 and August 1, 2017. Both state, in pertinent part, that Respondent agrees to discontinue use of the disputed domain name by July 31, 2017; that Respondent rejects Complainant’s request for a gratuitous transfer of the disputed domain name; that the disputed domain name may be transferred only through a sale; and that Complainant is invited to present an offer to purchase the disputed domain name. In addition, the letter of June 27, 2017 states that “arrangements shall be in place for the redirection of any persons visiting the Domain to a different brand, owned by our clients.” And the letter of August 1, 2017 states “please note that no redirection, to any website, is at present point effected.” 6. Discussion and Findings
In view of Respondent’s failure to submit a formal response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Talk City, Inc. v. Robertson,WIPO Case No. D2000-0009 (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”); see also Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109.
Before considering the three elements of the Policy, the Panel must rule on the language of the proceedings.
The language of the proceeding shall be the language of the registration agreement. In this case, the Registrar has confirmed that French is the language of the registration agreement.
Complainant requests that this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the French language Registration Agreement. Complainant argues that Respondent’s use of the English for the web site at the disputed domain name, and its use of English in its correspondence with Complainant, indicate an understanding of the language. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as relevant include evidence of Respondent’s understanding of the language of the Complaint. See The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610 (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the French language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng,WIPO Case No. D2006-0432 (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding shall be in English. A. Identical or Confusingly Similar
The disputed domain name consists of an element, “bink” that is phonetically identical to Complainant’s mark BINCK, together with the descriptive term “option”, which refers to Complainant’s business activities. This is sufficient to find confusing similarity in the sense of the Policy. For the phonetic similarity test see Geoffrey, LLC v. Toys R Russ and Days of ‘49,WIPO Case No. D2011-0830; see also Microsoft Corporation v. Mike Rushton,WIPO Case No. D2004-0123. For the addition of the descriptive term “option” see Valero Energy Corporation and Valero Marketing and Supply Company v. Valero Energy,WIPO Case No. D2017-0075; see also M/s Daiwik Hotels Pvt. Ltd v. Senthil Kumaran S, Daiwik Resorts,WIPO Case No. D2015-1384; see also ERGO Versicherungsgruppe AG v. Idealist,WIPO Case No. D2008-0377 (the combination of the trademark ERGO in the second level of a domain name together with a generic term “finance” made the disputed domain name confusingly similar to the trademark in question). The omission of the letter “c” in “bink” might be seen also as a misspelling of Complainant’s BINCK trademark (also known as “typosquatting”).
The Panel holds that Complainant has satisfied its burden of proof for the first element of the Policy. B. Rights or Legitimate Interests
Respondent does not have any license or other authorization to use Complainant’s mark or to sell its products or services. Respondent is not commonly known by the disputed domain name. The Panel further notes that Respondent’s request to register the trademark BINKOPTION was denied by INPI.
Respondent used the disputed domain name to resolve to a web site offering banking and finance services that compete with those of Complainant. Thus Respondent’s use of Complainant’s mark in the disputed domain name appears to be an attempt to trade off of Complainant’s reputation and goodwill by taking advantage of the confusing similarity between the disputed domain name and Complainant’s trademark.
Legitimate rights or bona fide use do not exist when there is deliberate infringement of another’s rights, or when the domain name is used in bad faith to divert users through confusion, see the discussion below and see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan,WIPO Case No. D2002-0701; see also AltaVista Company v. Saeid Yomtobian,WIPO Case No. D2000-0937.
The Panel holds that Complainant has satisfied its burden of proof for the second element of the Policy. C. Registered and Used in Bad Faith
Respondent has not presented any plausible explanation for its use of Complainant’s trademark in the disputed domain name. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as noted above, Respondent used the disputed domain name to resolve to a web site that offered services that compete with those of Complainant. Thus the Panel finds that Respondent has registered and is using the disputed domain name to take advantage of the confusing similarity between the disputed domain name and Complainant’s mark in order to profit from the goodwill associated with the mark in bad faith under paragraph 4(b)(iv) of the Policy. See Philip Morris Incorporated v. Alex Tsypkin,WIPO Case No. D2002-0946; see also AB Electrolux v. Pablo Rodriguez Guirao,WIPO Case No. D2011-0729.
Further, Respondent offered to sell the disputed domain name to Complainant. While Respondent did not specify an amount, it appears clear that Respondent would expect the amount to be well over out of pocket costs. Such behavior by Respondent provides additional evidence of bad faith registration and use, in the sense of the Policy. See Oculus VR, LLC v. Sean Lin,WIPO Case No. DCO2016-0034; see also OLX, B.V. v. Abdul Ahad / Domains By Proxy, LLC,WIPO Case No. D2015-0271; see also Cofra Holding AG v. Mr. Obada Alzatari,WIPO Case No. D2014-1709.
The Panel holds that Complainant has satisfied its burden of proof for the third element 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 name be transferred to Complainant.
Richard Hill
Sole Panelist
Date: August 10, 2017
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