The Complainant is Monabanq SA, France, represented by MEYER & Partenaires, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Pascal Laurent Demmerle, 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 December 4, 2019. On December 5, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 5, 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 December 17, 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 December 19, 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 December 24, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 13, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 14, 2020. The Center appointed Gareth Dickson as the sole panelist in this matter on January 28, 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 banking company with headquarters in Villeneuve d’Ascq, France. It operates its online banking business through its website, which is accessible at “www.monabanq.com”, and also through a mobile application that uses the trade mark MONABANQ (the “Mark”). The Complainant is the registered owner of various trade marks around the world for MONABANQ, including the following: - French trade mark number 3774308, registered on October 14, 2010 in class 41; and The Complainant (or its subsidiary with its permission) is also the registrant of a number of domain names incorporating MONABANQ, including: - The disputed domain name was registered by the Respondent, who shielded its name through use of a privacy service, on July 23, 2019. 5. Parties’ Contentions A. Complainant The Complainant claims that the disputed domain name is identical or at least confusingly similar to its trade mark MONABANQ. It argues that the main and distinctive element of the Mark, that is, “mona”, is entirely reproduced in the disputed domain name and that the remaining element, that is, “banq”, which is itself a fanciful reference to “banque” used uniquely by the Complainant, has been substituted in the disputed domain name by the similar “bnk”, which is a misspelling of “bank”, which is phonetically and conceptually very similar to “banq”. The Complainant also submits that the Respondent is not related in any way to the Complainant’s business; has no licence or authority to make use of the Mark; and is not currently and has never legitimately been known as “Monabnk”, despite the fact that the disputed domain name used to direct Internet users to a website purporting to offer financial services under the name “Monabnk” or “Mona Bank” or “Mona” or “Mona-Banque”: in reality, that website appears to have existed only to collect personal data and login information via a form, by impersonating the Complainant and other banking entities. Such use, according to the Complainant, is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use such as is permitted under the Policy. Considering these elements, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. Finally, given the inherent distinctiveness of the Mark, as described above, the Complainant argues that the Respondent must have registered the disputed domain name with full and actual knowledge of the Mark and in bad faith. Furthermore, the use of the disputed domain name to impersonate the Complainant and divert customers from it to the Respondent, for the purposes of collecting personal data and login information from them, is a bad faith use of that disputed domain name. 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 bears the burden of proving that: (i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; These criteria are cumulative. The failure of the Complainant to prove any one of these elements means the Complaint must be denied. A. Identical or Confusingly Similar The Panel accepts that the Complainant is the owner of, and therefore has rights in, the Mark. Section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) provides that “[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”. The Panel accepts that the disputed domain name is confusingly similar to the Mark. The omission of an “a” in that domain name and the replacement of a “q” with a “k” in it does not alter the phonetic or conceptual similarity between the disputed domain name and the Mark; and the disputed domain name is clearly intended to appear, and is, confusingly similar to the Mark. The addition of the generic Top-Level Domain “.com” does not alter this conclusion. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights. B. Rights or Legitimate Interests Although a complainant is required to demonstrate that a respondent has no rights or legitimate interests in respect of the domain name, as explained in section 2.1 of the WIPO Overview 3.0, the consensus view of previous UDRP panels is that where a complainant establishes a prima facie case that the respondent lacks rights or legitimate interests the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. In the current proceeding, the Complainant has established its prima facie case. It states that it has not given the Respondent permission to use the Mark, in a domain name or otherwise, and submits that the Respondent has not been commonly known by the disputed domain name. The Complainant also submits that the redirection of Internet users to a website designed to gather their personal data and login information does not constitute a bona fide sale of goods or services or a legitimate noncommercial or fair use within the meaning of the Policy. Section 2.13.1 of the WIPO Overview 3.0 states that: “Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent”. By not participating in these proceedings, the Respondent has failed to refute the Complainant’s prima facie case that it has met its burden under the second UDRP element. As clearly stated in section 2.1 of the WIPO Overview 3.0, “a panel’s assessment will normally be made on the basis of the evidence presented in the complaint and any filed response. The panel may draw inferences from the absence of a response as it considers appropriate, but will weigh all available evidence irrespective of whether a response is filed”. Having reviewed and weighed the available evidence, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Panel finds that the disputed domain name was registered in bad faith. It is a clear example of typosquatting, that is, a domain name which was chosen with a trade mark owner in mind, usually after the relevant trade marks have been registered, and for the purpose of diverting traffic away from that trade mark owner by capitalizing on Internet users’ typographical mistakes. The disputed domain name is also being used in bad faith. Section 3.1.4 of the WIPO Overview 3.0 states: “[…] given that the use of a domain name for per se illegitimate activity such as the sale of counterfeit goods or phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith”. Although that particular bad faith use of the disputed domain name by the Respondent has now ceased, it does not alter the Panel’s findings above and the Panel finds that the disputed domain name is being used in bad faith under the doctrine of passive holding. Section 3.3 of the WIPO Overview 3.0 states that relevant factors to finding bad faith in passive holding include: “(i) the degree of distinctiveness or reputation of the complainant’s mark; The Panel notes that the Mark is distinctive of the Complainant and further notes that the Respondent has not participated in these proceedings or sought to explain its registration and use of the disputed domain name. There is also no conceivable use of the disputed domain name by the Respondent that would not be illegitimate. Consideration of these and other factors militates in favour of a finding of bad faith. The Panel finds that the Respondent has registered and is using the disputed domain name 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 Gareth Dickson
- European Union Trade Mark numbers 5601224 and 18064036, registered on December 19, 2006 and on May 14, 2019 respectively, in classes 9, 16, 35, 36, and 38.
-
-
-
-
-
-
(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.
(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 […], and
(iv) the implausibility of any good faith use to which the domain name may be put.”
Sole Panelist
Date: February 11, 2020
Full & Egal Universal Law Academy