The Complainant is CREDIT MUTUEL ARKEA, France represented by Nameshield, France.
The Respondent is Nilice jose Abadassi, Benin. 2. The Domain Name and Registrar
The disputed domain name is registered with Hosting Concepts B.V. d/b/a Openprovider (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 15, 2019. On May 15, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 16, 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 May 16, 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 May 17, 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 May 24, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 13, 2019. The Respondent sent an email communication on May 28, 2019 but the Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s about Commencement of Panel Appointment Process on June 17, 2019.
The Center appointed Alistair Payne as the sole panelist in this matter on June 25, 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 a co-operative and mutual bank insurance group based in France. It owns the French trade mark ARKEA registered under number 96636222 since July 26, 1996 in addition to a number of other trade marks containing the term ARKEA.
The disputed domain name was registered on May 9, 2019. 5. Parties’ Contentions A. Complainant
The Complainant submits that it owns registered trade mark rights in the ARKEA word mark as set out above. It submits that the addition of the word “services” together with a hyphen is not a sufficient distinguisher to escape a finding of confusing similarity and that it is well established that a domain name that wholly incorporates a complainant’s registered trade mark may be sufficient to establish confusing similarity. It says that neither the addition of the word services together with the hyphen, nor the addition of the generic Top-Level Domain Name (“gTLD”) suffix “.com” is sufficient to change the overall impression that the disputed domain name is connected to or associated with ARKEA.
The Complainant notes that several UDRP decisions have confirmed its rights in the term ARKEA in the context of domain name disputes and notes the following as examples,WIPO Case No. D2018-1770, Credit Mutuel Arkea v. Sun Xiao Cheng, ; WIPO Case No. D2018-0552, Crédit Mutuel Arkea v. Lang Garland, .
The Complainant submits that the Respondent is not commonly known by the disputed domain name. It says further that the Respondent is not related in any way to the Complainant and has not been authorised or licensed by the Complainant to use its ARKEA mark. It notes that the disputed domain resolves to a page with no substantive content except for an error message. As a consequence, the Complainant says that the Respondent did not make any use of the disputed domain name since its registration and confirms that the Respondent has no demonstrable plan to use the disputed domain name and this demonstrates a lack of rights or legitimate interests in the disputed domain name.
As far as bad faith is concerned, the Complainant says that the Respondent registered the disputed domain name many years after the registration of the ARKEA trade mark by the Complainant who had by this time an established reputation in connection with its trade mark. In addition, the Complainant says that the term ARKEA has no significance other than in relation to its business and that all the results from a search engine in relation to the term “ARKEA” are related to the Complainant or its subsidiaries. Therefore, says the Complainant, the Respondent knew or should have known, about the Complainant’s rights and this evidences its bad faith.
Furthermore, submits the Complainant, the disputed domain name points to a page without any substantial content except for an error message. It says that the Complainant has not demonstrated any activity and it is not possible to conceive of any plausible actual or contemplated active use of the disputed domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trade mark law. As a result the Complainant submits that the Respondent has registered and used the disputed domain name in bad faith. B. Respondent
The Respondent did not formally reply to the Complainant’s contentions. The Respondent sent an email communication stating that the registrations occurred due to a typographical errors and that the domain name has already been suspended. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has demonstrated that it owns the French trade mark ARKEA which was registered under number 96636222 on July 26, 1996. The Complainant’s trade mark is wholly contained within the disputed domain name a circumstance which has been found by the consensus of past panels to indicate that the disputed domain name is confusingly similar to the Complainant’s registered trade mark. Neither the addition of a hyphen and the word “services” nor the Top Level-Domain (“TLD”) root detract from this finding and as a result the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered ARKEA mark and the Complaint succeeds under this element of the Policy. B. Rights or Legitimate Interests
The Complainant has submitted that the Respondent is not commonly known by the disputed domain name, that the Respondent is not related in any way to the Complainant and that it has not been authorised or licensed by the Complainant to use the ARKEA mark. The Complainant notes that the disputed domain name resolves to a page with no substantive content except for an error message and as a consequence, says that the Respondent has not made any use of the disputed domain name since its registration and that it does not appear that the Respondent has any demonstrable plan to use the disputed domain name.
The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and that this has not been rebutted by the Respondent. As a result and also for the reasons set out under Part C below the Panel finds that the Complaint also succeeds under this element of the Policy. C. Registered and Used in Bad Faith
The disputed domain name was registered many years after the registration of the Complainant’s French trade mark and long after the Complainant was formed into a mutual group in France in 2002. The Complainant notes that it has traded using its ARKEA mark since that time and that Internet searches using this term in a search engine only bring up references to the Complainant or to its subsidiaries. In addition the Panel notes that the term ARKEA appears to have no common meaning and is highly distinctive and previous panels have confirmed the Complainant’s rights in the term ARKEA, namely: WIPO Case No. D2018-1770, Credit Mutuel Arkea v. Sun Xiao Cheng, ; WIPO Case No. D2018-0552, Crédit Mutuel Arkea v. Lang Garland, . In these circumstances and although the Respondent is based in Benin, which the Panel notes is also French speaking, the Panel considers it more likely than not that the Respondent registered the disputed domain name with knowledge of the Complainant’s ARKEA mark and business.
There is no evidence that the Respondent has used the disputed domain name except to make it resolve to a blank holding page that features an error message. Circumstances amounting to a passive holding in bad faith are noted at section 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition. Panel’s applying this doctrine have generally considered the following factors: (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 concealment of its identity or use of false contact details and (iv) the implausibility of any good faith use to which the disputed domain name may be put.
In this case the Complainant’s mark is quite distinctive as noted above and it appears that the Complainant has made substantial use of it in relation to its wide-ranging financial services business over many years. The Respondent in this case has failed to submit a response or to provide any evidence of actual or contemplated good-faith use. Finally, the fact that the Respondent, who appears to be based in French speaking Benin registered the disputed domain name wholly incorporating the Complainant’s very distinctive ARKEA mark many years after the Complainant first registered its mark and had made substantial use of it, at least in France, suggests, as noted above, that registration was undertaken with knowledge of the Complainant’s trade mark and if so, then is more likely than not to have been made with a view to somehow profiting from the disputed domain name in bad faith. The Panel accepts the Complainant’s submission that the Respondent has not demonstrated any activity and that it is not possible to conceive of any plausible actual or contemplated active use of the disputed domain name by the Respondent that would not be illegitimate. In all of these circumstances the Panel is prepared to find that this amounts to a passive holding in bad faith.
Accordingly, the Panel finds that the disputed domain name has been registered and used in bad faith and that the Complaint also succeeds under this 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 the Complainant.
Alistair Payne
Sole Panelist
Date: June 30, 2019
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