The Complainant is Belfius Bank S.A./Belfius Bank N.V., Belgium, represented by Nelly Imandt, Belgium.
The Respondent is Arnout Van de Meulebroucke, Phished, Belgium, self-represented. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2019. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 19, 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 August 22, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center sent a communication to the Parties, in English and Dutch, regarding the language of the proceeding. On August 23, 2019, the Complainant confirmed its request that English be the language of the proceeding to which the Respondent consented. The Complainant filed an amended Complaint on August 23, 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 September 2, 2019. The Center received an email from the Respondent on August 23, 2019. On September 16, 2019, the proceedings were suspended for purposes of settlement discussions between the Parties. The proceedings were reinstituted on October 30, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 5, 2019. The Respondent did not submit any formal response. Accordingly, the Center notified the Parties about the Commencement of Panel Appointment Process. The Center appointed William A. Van Caenegem as the sole panelist in this matter on November 15, 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. TheComplainant requested a suspension of the proceedings in accordance with paragraph 17 (a)(i), upon the indication of the Respondent to transfer the disputed domain name. The Parties attempted to reach settlement and an agreement to transfer the disputed domain name. However, no settlement agreement was reached and the Complainant requested the proceeding to be reinstated. No further communications from the Respondent were received. 4. Factual Background The Complainant is a large Belgian bank with approximately 5,000 employees and 650 agencies in Belgium and is wholly owned by the Belgian state. Although its activities are concentrated in Belgium, the Complainant asserts that it has a reputation beyond inter alia the borders of that country because of its sponsorship of national sports teams. The Complainant is the registered owner of a number of trade mark registrations for the coined term BELFIUS, a composite term made up of “Bel” for Belgium, “fi” for finance and the English term “us”. In particular, it owns the European Union trade mark registration No. 010581205 “Belfius”, filed on January 23, 2012 and registered on May 24, 2012, the Benelux registration No. 914650 “Belfius”, filed on January 23, 2012 and registered on May 10, 2012, and the Benelux registration No. 915963 “Belfius”, a figurative mark, filed on March 2, 2012, and registered on June 11, 2012. The Complainant also owns and operates the websites at “www.belfius.be” where it offers banking and financial services and “www.belfius.com” from where it offers related information and services to journalists and institutional partners. The disputed domain name was registered on January 8, 2019, and does not resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is virtually identical to its registered BELFIUS trade mark. Relevantly, it differs only by the addition of an “”", a variation that does not significantly alter the pronunciation or appearance of the disputed domain name. Since the disputed domain name is a slight misspelling of the BELFIUS trade mark, this is said to be a typical example of typosquatting, a practice that according to the Complainant has regularly been seen to result in a finding of confusing similarity between a domain name and a trade mark. The Complainant also points out that the Respondent has no rights or legitimate interests in the disputed domain name. It has not been licensed or authorized to use the Complainant’s trade mark in the disputed domain name, and generally has no association with the Complainant. The Respondent has no rights in the term BELFIUS and according to the Complainant does not carry out any activity of any kind. The Respondent makes no use of the disputed domain name in relation to any active website, a passive holding which in the appropriate circumstances is indicative that no rights or legitimate interests vest in a domain name. The Complainant also asserts that its Community trade mark BELFIUS has been registered since 2012, whereas the disputed domain name was only registered on January 8, 2019. The Respondent thus had either actual or constructive knowledge of the Complainant’s trade mark, or was willfully blind to its existence, which amounts to bad faith on its part. If the Respondent had conducted some good faith searches before registration it would have readily found reference to the Complainant, who has a very substantial presence on the Internet, inter alia through its websites. In any case, the Respondent lives in Belgium and therefore could not fail to be conscious of the Complainant’s activities. According to the Complainant, the Respondent has done nothing with the website to which the disputed domain name resolves. It does not use or seem to intend to use the disputed domain name for the offering of bona fide goods or services; in any case, as it does not have rights or legitimate interests in the disputed domain name, it cannot pretend to have a good faith use in mind. In the circumstances, the passive holding of the disputed domain name amounts to bad faith. The Respondent is simply intending to attract Internet traffic from users who misspell the mark BELFIUS in their searches, a form of typosquatting which is necessarily in bad faith. Further, the Complainant points out that the Respondent deliberately provided false contact information in breach of its registration agreement. The provision of incomplete contact details and the inability to trace the Respondent make it unnecessarily difficult for the Complainant to vindicate its trade mark rights. The Complainant also says that the use of the term “phished” to identify the Respondent organization may also be construed as being in bad faith as it clearly suggests phishing activities. Even if the contact details should prove to be correct, the Respondent did not reply to the cease and desist communications from the Complainant. B. Respondent The Respondent indicated its willingness to agree to transfer the disputed domain name to the Complainant. Consequently, the proceeding was suspended for the sake of a settlement agreement between the parties. (However, no settlement agreement was received by the Center by the appointed date. Therefore the proceeding was reinstated and the Center proceeded to the appointment of a Panel.) Based on the evidence submitted, the Respondent is a Belgian company providing phishing simulation services. On May 9, 2019, it requested authorization from the Complainant to use the disputed domain name in said simulations. The Respondent points out that the disputed domain name remained inactive because the Complainant never replied to the Respondent’s request for authorization. The Respondent also says it requested deletion of the disputed domain name soon after it received the Complaint notice. Furthermore, the Respondent consented to transfer the disputed domain name to the Complainant. Further, the Respondent points out that “Phished” is the name of the organization and the product name of the brand. The Complainant’s inference that this is indicative of bad faith is said by the Respondent to be ludicrous and unprofessional. The Respondent also says that a proceeding in this matter is a waste of resources for all those involved. 6. Discussion and Findings Language of the Proceedings The language of the registration agreement appears to be Dutch. However, the Complainant requests that the language of this proceeding be English. The Complainant points out that conducting the proceedings in English would not disadvantage the Respondent as the latter is based in Belgium and therefore presumably speaks English, and the conduct of the proceedings in Dutch would cause unnecessary cost and delay. In any case the Respondent’s LinkedIn profile is in English, where he also describes himself as the founder and operator of this company, which conducts its activities at least in part in English. In any case the Respondent agreed to the conduct of the proceedings in English. Therefore, these proceedings are conducted in English. A. Identical or Confusingly Similar The disputed domain name is confusingly similar to the BELFIUS trade mark of the Complainant. The Panel notes that the trade mark is immediately recognizable within the disputed domain name. The only difference between the Complainant’s trade mark and the disputed domain name, virtually unnoticeable, is the addition of the letter “i”. This is a typical example of typosquatting, with a very minor variation to the Complainant’s registered trade mark. A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element (see section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Therefore the Panel holds that the disputed domain name is confusingly similar to the Complainant’s BELFIUS trade mark. B. Rights or Legitimate Interests The Respondent is not authorized to use the BELFIUS trade mark of the Complainant in any way, and is not associated with the Complainant. The Respondent conducts no legitimate activity by reference to the term “Belfiius”, and is not in any way known by that term. The composition of the disputed domain name is a characteristic example of typosquatting, not an activity liable to give rise to rights or legitimate interests in a domain name by the Respondent who undertakes it. On the contrary, it is indicative of bad faith to ride on the coattails of a Complainant by appropriation of its distinctive mark. The disputed domain name is so close to the registered trade mark of the Complainant as to be indistinguishable from it, and it is therefore almost impossible to imagine how any rights or legitimate interests could vest in the disputed domain name. Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Respondent contends that he registered the disputed domain name for the purpose of conducting phishing simulation exercises, an activity he says he engages in commercially on behalf of companies that are at risk of such activities. Having unilaterally registered the disputed domain name he requested the Complainant’s authorization to use the name and logo of the Complainant in “Automatic Phishing Simulations”. This request related to the disputed domain name which he had in fact already registered without any prior authorization, and so nearly resembled the Complainant’s trade mark as to be barely distinguishable from it. In terms of the registration of the disputed domain name he thus presented the Complainant with a fait accompli. This conduct amounts to the registration of the disputed domain name in bad faith. The Respondent offers no evidence of having used or intending to use the disputed domain name for a legitimate purpose. As he himself admits, any use of it is subject to the approval of the Complainant, given the fact that the disputed domain name is confusingly similar to a well-known trade mark belonging to it (see Telstra Corp. Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003). As the Respondent offered no evidence of any legitimate use of the disputed domain name that he could engage in without approval from the Complainant, and that it is entirely within the Complainant’s legitimate discretion to agree to such use or not, whatever its stated purpose, the Respondent’s actions amount to the kind of passive holding that is in bad faith in accordance with Telstra Corp. Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 Therefore the Panel holds that the disputed domain name was registered and used in bad faith. 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 William van Caenegem
Sole Panelist
Date: November 29, 2019
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