The Complainant is Confédération Nationale Du Crédit Mutuel of Paris, France represented by MEYER & Partenaires, France.
The Respondent is Paula Lopez of Bogotá, Colombia. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Instra Corporation Pty Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 1, 2019. On April 1, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 2, 2019, 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 an email communication to the Complainant on April 8, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 9, 2019.
The Center verified that the Complaint together with the amended 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 April 10, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 30, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 1, 2019.
The Center appointed Mariya Koval as the sole panelist in this matter on May 9, 2019. 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 the central body for the banking group CREDIT MUTUEL. The Complainant is a French banking and insurance services group, which provides its services to 12 million clients for more than a century. Today the Complainant is a major actor on the market of banking services for both individuals and businesses, having a network of 3,178 offices in France, congregated in 18 regional federations.
The Complainant is the owner of a large number of CREDIT MUTUEL trademark (the “CREDIT MUTUEL Trademark”) registrations in different jurisdictions, among which are:
- French trademark No. 1475940, application date July 8, 1988, in respect of services in classes 35 and 36;
- French trademark No. 1646012, application date November 20, 1990 in respect of goods and services in classes 16, 35, 36, 38, 41;
- International registration No. 570182, registration date May 17, 1991, in respect of goods and services in classes 16, 35, 36, 38, 41.
- European Union Trademark No. 9943135, application date May 5, 2011, in respect of goods and services in classes 9, 16, 35, 36, 38, 41, 42, 45;
The Complainant is the holder of many domain names, which contain the Complainant’s CREDIT MUTUEL Trademark, including, inter alia:
- (registered on August 10, 1995)
- (registered on October 28, 1995);
- (registered on October 3, 1996);
- registered on September 13, 2001);
- (registered on June 3, 2002).
The Disputed Domain Name was registered on February 1, 2019. At the date of this decision, the Disputed Domain Name resolves to inactive website. In accordance with the screenshots of the website associated with the Disputed Domain Name, presented by the Complainant (Annex H to the Complaint), on the date of the Complaint’s filing the Disputed Domain Name generated Error 403 webpage. 5. Parties’ Contentions A. Complainant
The Complainant alleges that its CREDIT MUTUEL Trademark is well-known in view of it has been recognized as well-known by the WIPO Arbitration and Mediation Center in UDRP cases, see e.g. Confederation Nationale du Credit Mutuel v. Philippe Marie,WIPO Case No. D2010-1513; CONFEDERATION NATIONALE DU CREDIT MUTUEL v. Adrienne BONNET,WIPO Case No. DFR2010‑0008; CONFEDERATION NATIONALE DU CREDIT MUTUEL v. Georges KERSHNER,WIPO Case No. D2006-0248.
Complainant points out that, according to the French ministry Order of October 16, 1958, the use of the wording CREDIT MUTUEL is reserved to CONFEDERATION NATIONALE DU CREDIT MUTUEL and to its related branches.
The Complainant claims that the Disputed Domain Name is highly confusingly similar to the Complainant’s CREDIT MUTUEL Trademark in view of it reproduces the Complainant’s Trademark in its entirety and the French word “particulier” as added to “CREDIT-MUTUEL” refers to one of the Complainant’s client category.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name in view of no license or authorization has been given to the Respondent to register the Disputed Domain Name and the Respondent is not commonly known by the Disputed Domain Name or by any combination of the terms “CREDIT MUTUEL PARTICULIER”. The Respondent does not own any trademarks that incorporate or are similar or identical to the Complainant’s CREDIT MUTUEL Trademark.
The Complainant notes that whereas the Disputed Domain Name does not resolve to any active website but generates an error 403 web page (Annex H to the Complaint), stating that the web server is trying to access a file that does not exist, or that exists but is forbidden or that has been configured improperly, such use of the Disputed Domain Name is neither a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii).
The Complainant also alleges that the Respondent registered and has used the Disputed Domain Name in bad faith because of, taking into consideration the well-known character of the CREDIT MUTUEL Trademark, it is unlikely that the Respondent has chosen the Disputed Domain Name otherwise than for creating an association with the Complainant’s fame and reputation.
The Complainant further alleges that the addition of the term “particulier” to the Disputed Domain Name combining with the Complainant’s well-known CREDIT MUTUEL Trademark, demonstrates that the Respondent was aware of the Complainant’s banking activities. This may indeed strengthen Internet users to believe that they are dealing with the Complainant’s website especially dedicated for individuals, while they do not.
The Complainant also contends that in view of the Disputed Domain Name does not resolve to any active website and generates an error 403 web page, such use of it constitutes bad faith use, as “passive holding” and establishes that such a passive use of the Disputed Domain Name is also revealing that the Respondent has no serious intent to use it for offering goods and services or promoting a noncommercial cause. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements:
(i) the disputed 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 in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used by the Respondent in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant has established its rights in the CREDIT MUTUEL Trademark due to long use and various registrations in different jurisdictions. Previous UDRP panels have also acknowledged the CREDIT MUTUEL Trademark as well-known, see e.g. Confederation Nationale du Credit Mutuel v. Philippe Marie,WIPO Case No. D2010-1513; CONFEDERATION NATIONALE DU CREDIT MUTUEL v. Adrienne BONNET,WIPO Case No. DFR2010-0008; CONFEDERATION NATIONALE DU CREDIT MUTUEL v. Georges KERSHNER,WIPO Case No. D2006-0248.
The Panel considers it is obvious that the Disputed Domain Name is confusingly similar to the Complainant's CREDIT MUTUEL Trademark in view of it contains the well-known Complainant’s Trademark in its entirety with addition of the word “particulier” and two hyphens combining with the generic Top-Level Domain (“gTLD”) “.com”. The Complainant’s Trademark is clearly recognizable in the Disputed Domain Name.
According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8 where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. Thus addition of the word “particulier” (which means “natural person; individual” in French language) to the Complainant’s Trademark in the Disputed Domain Name does not influent on finding of confusing similarity between the Disputed Domain Name and the Complainant’s CREDIT MUTUEL Trademark. The use of hyphens in the Disputed Domain Name is usually irrelevant in a finding of confusing similarity. Also, the (“gTLD”) are typically not taken into account for the purposes of determining whether a mark and a domain name are identical or confusing similar under the Policy.
In view of the above, the Panel concludes that the Disputed Domain Name is confusingly similar to the Complainant’s Trademark and respectively, the Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to the Respondent of the dispute, his 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 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 Panel is of the view that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent has neither any connection with the Complainant, nor has been authorised or licensed by the Complainant to use and register its CREDIT MUTUEL Trademark or to register of any domain name incorporating the Complainant’s Trademark. The Respondent, being the natural person, obviously is not known by the name and CREDIT MUTUEL Trademark.
Taking into account the long use and notoriety of the Complainant’s CREDIT MUTUEL Trademark, and also taking into account that the Complainant’s Trademark is completely incorporated in the Disputed Domain Name, the Panel considers that the Respondent might be well aware of the Complainant’s Trademark and business at the moment of registration of the Disputed Domain Name.
At the date of this Decision and on the date of the Complaint’s filing the Disputed Domain Name resolved to inactive website, that constitutes the passive holding. Passive holding of the Disputed Domain Name cannot be considered as a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert the Complainant’s consumers.
Furthermore, the Disputed Domain Name was registered with a privacy shield service, that further attests to the fact that the Respondent does not have any rights or legitimate interests in it, see e.g. Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records, WIPO Case No. D2017-2533.
In view of the foregoing, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and that the Complainant fulfilled the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
The Complainant alleges that at the date of the Complainant’s filling the Disputed Domain Names did not resolve to any active website. According to the WIPO Overview 3.0, section 3.3 while panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.
The Panel concludes that the Respondent has registered and used the Disputed Domain Name in bad faith. Such conclusion grounds on the fact that the Disputed Domain Name reproduces the Complainant’s Trademark in its entirety, the Complainant’s CREDIT MUTUEL Trademark is well-known and had been used for a long time before the Disputed Domain Name registration. Accordingly, the Panel finds it is more than likely that the Respondent intentionally choose the Complainant’s Trademark for registration of the Disputed Domain Name for the purpose of to benefit from the reputation of the Complainant’s Trademark.
The Respondent’s use of a privacy service on the date of the Complaint’s filing, alone, is not a strong evidence of the Disputed Domain Name bad faith registration and use. However, in view of the Respondent has failed to respond to this Complaint and to present any evidences, which could show the fair registration and use of the Disputed Domain Name, with the circumstances of this case points to bad faith registration and use (see e.g. Association Robert Mazars v. Private Whois Service, c/o ,WIPO Case No. D2009-0183).
Therefore, having examined all the circumstances of the case the Panel finds that the Respondent registered and is using the Disputed Domain Name in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy is satisfied. 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.
Mariya Koval
Sole Panelist
Date: May 19, 2019
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