The Complainants are Confidence Corretora de Câmbio S.A. / Banco Confidence de Câmbio S.A. of São Paulo, Brazil, represented by Kasznar Leonardos Advogados, Brazil.
The Respondent is Francisco Das Chagas Reis, São Paulo, Brazil. 2. The Domain Name and Registrar
The disputed domain name is registered with Hostinger, UAB (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 25, 2018. On May 25, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 27, 2018, 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 May 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 19, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 21, 2018.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on June 26, 2018. 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 first Complainant was founded in 1996 and renders exchange services. In 2010 the second Complainant was incorporated as the first Brazilian exchange bank, expanding the services provided by the group.
The first Complainant is the owner of the Brazilian trademark application No. 907478220 for CONFIDENCE CAMBIO, filed on March 25, 2014 in class 36 and the second Complainant is the owner of the Brazilian trademark application No. 903307430, for BANCO CONFIDENCE, filed on January 18, 2011 and rejected on January 30, 2018.
The disputed domain name was registered on August 8, 2017. The disputed domain name has according to the Complainant been used in connection with the offer of fraudulent loans of money but currently no active webpage resolves from the disputed domain name. 5. Parties' Contentions A. Complainant
The Complainants assert to be the leading group in Brazil's exchange market, offering a broad portfolio of products and services in the touristic exchange as well as in connection with international payments, being also part of currency exchange groups such as Travelex, since 2013 and Renova Exchange, since 2015.
The Complainants' trademark applications incorporate "confidence" and other expressions related to their activities, such as "cambio", which in Portuguese stands for "exchange" and "banco" that means "bank". In addition to that the Complainants are the owners of several domain names which incorporate "confidence" such as , registered on January 6, 2000, largely promoted and used in connection with the Complainants' products and services.
Under the Complainants' view the disputed domain name reproduces "confidence" with the addition of the generic term "credito", which stands for "credit" in Portuguese, and is directly related to the products and services offered by the Complainants, thus increasing the likelihood of confusion between the disputed domain name and the Complainants and their trademarks.
Moreover, the Complainants assert that the Respondent has no rights or legitimate interests in respect of the disputed domain name given that:
(a) there is no evidence that Respondent is commonly known by the disputed domain name and the disputed domain name does not correspond to the Respondent's name;
(b) the Respondent has not been authorized or licensed to use the Complainants' trademarks;
(c) the use made of the disputed domain name by the Respondent, seeking to deceive consumers and offering fraudulent loans (Annex 8 to the Complaint) cannot be considered a legitimate fair use of the disputed domain name.
As to the registration and use of the disputed domain name in bad faith the Complainants assert that the Respondent was undoubtedly aware of the Complainants and their trademarks given that the Respondent indicated the Complainants' address and tax payer ID number of Confidence Holding Financeira S/A (a company belonging to the Complainants' group which was later incorporated by Confidence Empreendimentos S/A, another company of the group) in the webpage that resolved from the disputed domain name and in which fraudulent loans of money were offered. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order the transfer of the disputed domain name to the Complainants:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Complainants must prove in this administrative proceeding that each of the aforesaid three elements is present so as to have the disputed domain name transferred to them, according to paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The first Complainant has shown that it is the owner of a pending Brazilian trademark application for CONFIDENCE CAMBIO filed in 2014 and in use in the Brazilian market.
The disputed domain name reproduces the core of the Complainants trademarks, CONFIDENCE, with the addition of another generic term ("credito" which stands for "credit" in Portuguese). This is not sufficient, under this Panel's view to avoid confusing similarity between the disputed domain name and the Complainants and their trademarks1.
The first element of the Policy has been established. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that may indicate a respondent's rights to or legitimate interests in a domain name. These circumstances are:
(i) before any notice of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired 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.
As the evidence submitted clearly indicates, the Complainants have made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name given that the disputed domain name was used in connection with a fraudulent scheme depicting the details of a company that belongs to the Complainants group in an effective attempt to create confusion. The burden of production has therefore shifted to the Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name. This entitles the Panel to draw any inferences from such default as it considers appropriate, pursuant to paragraph 14(b) of the Rules.
In that sense, the Complainants indeed state that the Respondent has not been authorized or licensed to use the Complainants' trademarks.
Also, the absence of any trademarks or trade names registered by the Respondent corresponding to the disputed domain name, or any possible link between the Respondent and the disputed domain name, that could be inferred from the details known of the Respondent or the webpage relating to the disputed domain name, corroborate the absence of a right or legitimate interest.
The use made of the disputed domain name in connection with a webpage that offered fraudulent money loans and which indicated the tax payer ID number and address of one of the Complainants' group companies cannot be considered a bona fide one.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith
This case presents the following circumstances which indicate bad faith registration and use of the disputed domain name given that:
a) there are indications that the disputed domain name has been used in connection with fraudulent scams;
b) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain name;
c) the Respondent evidently was aware of the Complainants and their trademarks in view of the contents of the website that resolved from the disputed domain name;
d) the absence of a formal reply to the Complaint; and
e) the email and physical addresses provided by the Respondent appear to be false ones.
For the reasons above, the Respondent's conduct has to be considered, in this Panel's view, as bad faith registration and use of the disputed domain names pursuant to paragraph 4(b)(iv) 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 the first Complainant.
Wilson Pinheiro Jabur
Sole Panelist
Date: July 6, 2018
1 Moreover, given the particular aspects of the case (the fraudulent use of the disputed domain name and the clear association made with the Complainant's Group) and also considering that Brazilian law No. 9.279 of 1996 foresees in its art. 130, III, that the applicant is assured the right "to care for its material integrity and reputation" this Panel finds confusion with the first Complainant's trademark likely.
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