The Complainant is Boursorama S.A, France, represented by Nameshield, France.
The Respondent is c/o WHOIStrustee.com Limited, United Kingdom / Registrant of boursoramadomtom.com / ABDOU SAGBO, Benin. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2019. On October 31, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 4, 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 November 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 November 12, 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 November 13, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 3, 2019. The Notification of Respondent default was sent on December 9, 2019. However, on December 11, 2019, it was noted that due to an administrative oversight, it appears that the Center’s Notification email was not copied to the two email addresses reflected on Annex 6 to the Complaint, as required by paragraph 2(a) of the Rules. In light of this, the Respondent was granted a five day period, through December 18, 2019, in which to indicate whether it wishes to participate in this proceeding. The Center then forwarded its email with attached, Complaint, amended Complaint, annexes to the Complaint, and Notification of Complaint and Commencement of Administrative Proceeding on November 13, 2019. As the Center did not hear anything from the Respondent by November 18, 2019, a notice of commencement of Panel appointment was sent to the Parties. The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on January 6, 2020. 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 French corporation rendering online brokerage, online banking and financial information services on the Internet. The Complainant is the owner of the European Union registration No. 001758614 for the word mark BOURSORAMA, registered on October 19, 2001, in classes 9, 16, 35, 36, 38, 41 and 42 (Annex 4 to the Complaint). The disputed domain name was registered on October 29, 2019, and was used in connection with a website written in French, offering loans and depicting the Complainant’s address. Presently no active webpage resolves from the disputed domain name. 5. Parties’ Contentions A. Complainant The Complainant claims to be a pioneer and leader in its three core businesses, having 1,9 million customers and being the first French online banking platform as well as the first French financial and economic information site. According to the Complainant, the disputed domain name incorporates entirely its distinctive BOURSORAMA trademark with the addition of the term “domtom” which is the French acronym for French overseas departments and territories (Départements d´outre-mer, Territoires d´outre mer), not being such addition sufficient to exclude a confusing similarity between them. Regarding the absence of the Respondent’s rights or legitimate interests, the Complainant argues that: i. the Respondent is not commonly known by the disputed domain name; ii. the Respondent is not affiliated with nor authorized by the Complainant in any way, not having been granted authorization or license to make any use of the Complainant’s trademark, or apply for the registration of the disputed domain name; iii. the webpage that resolved from the disputed domain name was used to offer loan services and indicated as the Respondent’s headquarters, which is the Complainant’s official address (Annex 7 to the Complaint), in an attempt to pass off as the Complainant or its affiliate. Also, according to the Complainant, the indication of the Complainant’s official address in the webpage that resolved from the disputed domain name indicates that the Respondent had actual knowledge of the Complainant and its trademark, being the use made of the disputed domain name to offer loans an intentional attempt to attract, for commercial gain, Internet users to the disputed domain name by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location, as indicated by the Policy, paragraph 4(b)(iv). 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 Complainant: 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 in bad faith. The Complainant 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 it, according to paragraph 4(i) of the Policy. A. Identical or Confusingly Similar The Complainant has established rights over the BOURSORAMA trademark. The disputed domain name incorporates the Complainant’s trademark with the addition of the term “domtom”. This addition does not prevent the disputed domain name from being confusingly similar with the BOURSORAMA trademark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. For the reasons above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that may indicate the Respondent’s rights or legitimate interests in the disputed domain name. These circumstances are: i. before any notice of the dispute, the Respondent’s use 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. the Respondent (as individuals, businesses, or other organizations) has been commonly known by the disputed domain name, in spite of not having acquired trademark or service mark rights; or iii. the 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 the trademark or service mark at issue. 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. Nevertheless, the burden of proof is still on the Complainant to make at least a prima facie case against the Respondent under the second UDRP element. In that sense, and according to the evidence submitted, the Complainant has made a prime facie case against the Respondent which has not been commonly known by the disputed domain name and is not affiliated with the Complainant nor has it been licensed or otherwise permitted to use any of the Complainant’s trademarks or to register a domain name incorporating its BOURSORAMA trademark. 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 The Policy indicates in paragraph 4(b)(iv) that bad faith registration and use can be found in respect of a disputed domain name, where a respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. In this case, both the registration and use of the disputed domain name in bad faith can be found pursuant to Policy paragraph 4(b)(iv) in view of the reproduction of the Complainant’s official address in the webpage that was written in French and used to offer loan services (services also rendered by the Complainant), creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement thereof. In light of the above, the Panel is of the opinion that due to the Complainant’s reputation and the reproduction of the Complainant’s official address in the webpage that resolved from the disputed domain name, the Respondent was aware of the Complainant’s trademark at the time of registration of the disputed domain name, indicating the Respondent’s bad faith registration of the disputed domain name. 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 name. 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 Wilson Pinheiro Jabur
Also according to the evidence submitted by the Complainant, the use made of the disputed domain name in connection with an online webpage written in French and offering loan services (in direct competition or association with the Complainant), together with the indication as its address the Complainant’s official address, clearly suggest an impersonation or at least an affiliation with the Complainant which in fact does not exist.
Sole Panelist
Date: January 20, 2020
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