Complainant is Boursorama S.A. of Paris, France, represented by Nameshield, France.
Respondent is Zhaozhijun of Tianjin, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the "Registrar"). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on July 4, 2018. On July 4, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 5, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On July 11, 2018, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant requested that English be the language of the proceeding on July 12, 2018. Respondent did not comment on the language of the proceeding by the specified due date.
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 English and Chinese of the Complaint, and the proceedings commenced on July 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 7, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on August 8, 2018.
The Center appointed Yijun Tian as the sole panelist in this matter on August 14, 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 A. Complainant
Complainant, Boursorama S.A., is a company incorporated in Paris, France. Complainant submits that, founded in 1995, Complainant is a pioneer and leader in its three core businesses: online brokerage, financial information on the Internet and online banking, and that in France, Boursorama is the online banking reference with more than 1,300,000 customers (Annex 3 to the Complaint).
Complainant has registered a number of trademarks for BOURSORAMA, including trademarks registrations in the European Union (registered on October 19, 2001, European Union registration number 001758614) (Annex 4 to the Complaint). Complainant also owns a number of domain names containing the trademark BOURSORAMA, such as the domain name , registered since February 28, 1998 (Annex 5 to the Complaint). B. Respondent
Respondent is Zhaozhijun of Tianjin, China. Respondent registered the disputed domain name on July 2, 2018, which are long after Complainant's registration of the BOURSORAMA trademarks in the European Union (since 2001). The disputed domain name currently resolves to an active website, which has been used to offer online lottery service (Annex 6 to the Complaint). 5. Parties' Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to the BOURSORAMA marks and domain names associated.
Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be transferred to it. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
a) The English language is the language most widely used in international relations and is one of the working languages of the Center;
b) In order to proceed in Chinese, Complainant would have had to retain specialized translation services at a cost very likely to be higher than the overall cost of these proceedings. The use of Chinese in this case would therefore impose a burden on Complainant which must be deemed significant in view of the low cost of these proceedings.
c) The disputed domain name is in Latin characters as the English language rather than Chinese script.
d) The Complaint is written in English but the Center informed Respondent in Chinese and afforded Respondent the opportunity to do all of the above in Chinese.
Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593). The language finally decided by the Panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") further states:
"Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant's mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement." (WIPO Overview 3.0, section 4.5.1; see also L'Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585)
The Panel has taken into consideration the facts that Complainant is a company from the France, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name includes Latin characters ("boursoramama") and is registered in the generic Top-Level Domain ("gTLD") space comprising of the Latin characters "com" (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047).
On the record, Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds that persuasive evidence in the present proceeding to suggest that Respondent may have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name includes Latin characters "boursoramama" and "com" rather than Chinese script; (b) the contents of the website at the disputed domain name contain many English words and phrases, such as "Login", and "Copyright ©… All Rights Reserved" (Annex 6 to the Complaint); (c) the Center has notified Respondent of the proceeding in both Chinese and English; (d) the Center informed Respondent that it would accept a Response in either English or Chinese.
Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantial Issues
Paragraph 4(a) of the Policy requires that Complainant prove each of the following three elements to obtain an order that the disputed domain name should be transferred:
(i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy (paragraphs 4(a) - (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the BOURSORAMA marks acquired through registration. The BOURSORAMA Marks have been registered in the European Union since 2001.
The disputed domain name comprises the BOURSORAMA mark in its entirety. The disputed domain name only differs from Complainant's trademarks by the suffix "ma", and the gTLD suffix ".com" to the BOURSORAMA Marks. This does not eliminate the confusing similarity between Complainant's registered trademarks and the disputed domain name.
Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy "when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name" (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662).
Generally a respondent "may not avoid likely confusion by appropriating another's entire mark and adding descriptive or non-distinctive matter to it." (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610 citing General Electric Company v. CPIC NET and Hussain Syed,WIPO Case No. D2001-0087).
Further, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.11.1 states:
"The applicable Top Level Domain ('TLD') in a domain name (e.g., '.com', '.club', '.nyc') is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test."
Thus, the Panel finds that the suffix "ma", and the gTLD suffix ".com" are not sufficient to negate the confusing similarity between the disputed domain name and the BOURSORAMA Marks.
The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) 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 Complainant's trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant's contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein).
According to the Complaint, Complainant has rights in the BOURSORAMA Marks registered in the European Union since 2001, which long precede Respondent's registration of the disputed domain name (in 2018).
Moreover, Respondent is not an authorized dealer of BOURSORAMA branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the BOURSORAMA Marks or to apply for or use any domain name incorporating the BOURSORAMA Marks. Moreover, the Panel visited the disputed domain name, and found that Respondent is currently using the disputed domain name in connection with a website which provides online lottery service. Therefore, the Panel finds that Respondent has not provided sufficient evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term "BOURSORAMA".
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name in 2018, long after the BOURSORAMA Marks' registrations. The disputed domain name is confusingly similar to Complainant's BOURSORAMA Marks.
(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name resolved to a website offering online lottery service. It seems that Respondent is making profits through the Internet traffic attracted to the website under the disputed domain name.
The Panel finds that Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on the website or location.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and is using the disputed domain name in bad faith.
The Panel finds that Complainant has a reputation in the BOURSORAMA Marks with regard to its products and services. Complainant has registered its BOURSORAMA Marks since 2001. Based on the information provided by Complainant, it is a pioneer and leader in its three core businesses: online brokerage, financial information on the Internet and online banking in the European Union, and it is the online banking reference with more than 1,300,000 customers in France. It is unlikely that Respondent would not have had actual notice of Complainant's trademark rights at the time of the registration of the disputed domain name (in 2018).
Moreover, Respondent is using the disputed domain name to offer online lottery services. Thus, the Panel concludes that Respondent is currently using the confusingly similar disputed domain name with the intention to "attract, for commercial gain, Internet users to Respondent's websites."
To establish an "intention for commercial gain" for the purpose of this Policy, evidence is required to indicate that it is "more likely than not" that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Given the reputation of the BOURSORAMA Marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website to which the disputed domain name resolves. In other words, Respondent has through the use of a confusingly similar disputed domain name created a likelihood of confusion with the BOURSORAMA Marks. Moreover, as mentioned above, Respondent offered online lottery services via the website to which the disputed domain name resolves. The Panel therefore concludes that the disputed domain name was registered and is being used by Respondent in bad faith.
In summary, Respondent, by choosing to register and use a domain name, which is confusingly similar to Complainant's internationally known trademarks, intended to disrupt Complainant's business. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent are indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third element of paragraph 4(a) of the Policy. 7. Decision
For all 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.
Yijun Tian
Sole Panelist
Dated: August 23, 2018
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