The Complainant is Confédération Nationale du Crédit Mutuel, France, represented by MEYER & Partenaires, France.
The Respondent is Whois Privacy Protection Foundation, Netherlands / Dani Lapo, France. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2020. On April 21, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On April 22, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 22, 2020 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 23, 2020. 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 24, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 14, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 25, 2020. The Center appointed Marie-Emmanuelle Haas as the sole panelist in this matter on June 10, 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 the political and center body of the French banking and insurance services group Credit Mutuel. Credit Mutuel has millions of clients, individual and professional, and more than 3,000 offices congregated in 18 regional federations in France. The Complainant operates the web portals “www.creditmutuel.com” and “www.creditmutuel.fr”. The last one, “www.creditmutuel.fr”, notably provides an online access to the client’s bank accounts. The Complainant is the owner of many trademarks consisting or including the wording “Credit Mutuel”, such as: - The semi-figurative French trademark CREDIT MUTUEL No. 1475940, registered on July 8, 1988, in classes 35 and 36; - The semi-figurative French trademark CREDIT MUTUEL No. 1646012, registered on November 20, 1990, in classes 16, 35, 36, 38, and 41; - The word European Union trademark CREDIT MUTUEL No. 9943135, registered on May 5, 2011, in classes 9, 16, 35, 36, 38, 41, 42, and 45; and, - The semi-figurative international trademark CREDIT MUTUEL No. 570182, 570182 designating Benelux, Italy, and Portugal, registered on May 17, 1991, in classes 16, 35, 36, 38, and 41. The Complainant contends that it is also, with its IT-dedicated subsidiary Euro Information, the owner of several domain names consisting of CREDIT MUTUEL and redirecting to its official web portal: - - - - - The disputed domain names were all registered on March 16, 2020, with the same registrar and were all registered under a privacy service. The name of the registrant has been disclosed by the Registrar on April 22, 2020, revealing that the registrant was the same individual located in France, who registered all the disputed domain names. The disputed domain names resolve to inactive webpages, although according to the Complainant, some have been activating phishing websites in the past. 5. Parties’ Contentions A. Complainant The Complainant contends that the well-known character of the CREDIT MUTUEL trademarks has already been recognized by panelists in prior UDRP decisions. It relies on a decision, which is cited as example, to assert that the CREDIT MUTUEL trademark is undoubtedly well-known. The Complainant highlights first an order of the French Ministry saying that the use of the wording CREDIT MUTUEL is reserved to the Complainant and its branches, and explains that it was one of the first French banking group to offer online banking services. To the Complainant, the disputed domain names disputed domain names are identical or confusingly similar to its trademark registrations, since they reproduce the CREDIT MUTUEL trademarks on which the Complainant has rights. Concerning the disputed domain name The Complainant adds that the similarity is not affected by the addition of generic Top-Level Domains (“gTLDs”), which are not sufficient to distinguish the disputed domain names from its trademarks. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the name “credit mutuel” since it is not related in any way to the Complainant’s business and is not currently and has never been known under the wordings “credit mutuel” or “mobile credit mutuel”. It also submits that the Respondent has not been authorized nor licensed by the Complainant to use its CREDIT MUTUEL trademark, or to apply for registration of the disputed domain names. The Complainant contends that the disputed domain names were registered in bad faith, considering its strong reputation and its well-known CREDIT MUTUEL trademark in France. Further, it argues that it seems unlikely that the Respondent has chosen these names, unless seeking to create an impression of association with the Complainant’s fame and reputation, the sign “credit mutuel” being the distinctive term of the disputed domain names. Moreover, the adjunction of the word “mobile” in the disputed domain name Therefore, there is no doubt for the Complainant that the Respondent was well aware of the Complainant’s activities and of the existence of its trademarks and domain names at the time the registrations were made. The Complainant also submits that the Respondent’s bad faith is highlighted by its use of a WhoIs proxy service to keep its personal identity private when registering the disputed domain names, which confirms its fraudulent intention. Finally, the Complainant contends that the Respondent’s use of the disputed domain names constitutes bad faith use, given the fact that two of the disputed domain names initially resolved to a website impersonating the Complainant. This activity shows the deliberate intention of the Respondent to create a risk of confusion by making Internet users of average attention believe that they are connected to the Complainant’s websites. Furthermore, the Complainant considers that the current inactivation of all the disputed domain names constitutes in itself bad faith use as “passive holding”. It relies on previous UDRP decisions, in which there is a consensus about this “non-use” because of the strong reputation of the Complainant’s trademarks and the absence of evidence of actual good faith by the Respondent on the domain names. The Complainant requests the transfer of the disputed domain names. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant has submitted evidence of its prior registered CREDIT MUTUEL trademarks, which are protected in France and in other countries. The Complainant’s CREDIT MUTUEL trademarks are well-known in France for banking services. The disputed domain names entirely incorporate the Complainant’s CREDIT MUTUEL well-known trademark. The adjunction of the dictionary word “mobile” in the disputed domain name The gTLDs “.click”, “.promo”, “.rip”, “.run”, and “.com” are a standard registration requirement, and may be disregarded when determining identity or confusing similarity under the first element. Therefore, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s CREDIT MUTUEL trademarks. The condition of paragraph 4(a)(i) of the Policy has therefore been satisfied. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the disputed domain name by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent’s 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 has been commonly known by the domain name, even if it 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 Respondent did not respond to the Complaint. Consequently, it did not provide any evidence or allege any circumstance to establish that it has rights or legitimate interests in the disputed domain name. The Respondent is not known under the disputed domain name and has not been licensed or authorized to use the well-known CREDIT MUTUEL trademark or to register the disputed domain name. Given the Complainant’s goodwill and renown worldwide, and the nature of the disputed domain names, which incorporates the CREDIT MUTUEL well-known trademark, it is not possible to conceive a plausible circumstance in which the Respondent could legitimately use the disputed domain names, as it would invariably result in misleading diversion and taking unfair advantage of the Complainant’s rights. All the disputed domain names resolve to inactive webpages. However, as evidenced in the Complaint, the disputed domain names Banking services are strictly regulated. Such practices are clearly very dangerous for the banks and for their customers and are totally illegitimate. Therefore, this use is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. In the circumstances of this case, the Panel finds that the Complainant has established a prima facie case of the Respondent’s lack of rights or legitimate interests in relation to the disputed domain name, which the Respondent has not rebutted. The condition of paragraph 4(a)(ii) of the Policy has therefore been satisfied. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out examples of circumstances that will be considered by a Panel to be evidence of bad faith registration and use of a domain name. It provides that: “For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent has registered or the respondent has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.” Given the well-known character of the CREDIT MUTUEL trademark in France, and the fact that the Respondent is domiciled in France, the Panel finds that the Respondent could not ignore the Complainant’s rights in these trademarks when it registered the disputed domain names. Furthermore, the entire reproduction of the Complainant’s well-known CREDIT MUTUEL trademark in the disputed domain names and with the adjunction of the generic word “MOBILE” in the disputed domain Therefore, the Panel finds that the disputed domain names were registered in bad faith. As to use in bad faith, as above explained, some of the disputed domain names were initially redirecting to webpages that have been blocked by the Netcraft toolbar because they were believed to be part of a fraudulent phishing attack. This practice demonstrates a fraudulent behaviour, in the meaning of Paragraph 4(b)(iv) of the Policy. The Panel takes into consideration the fact that, as a banking group, the Complainant faces a lot of counterfeiting and phishing attempts, and that it must protect its clients against these attacks on the Internet. The Panel also takes into consideration, as above explained, that banking services are strictly regulated, to protect professionals as well as their customers. Therefore, it cannot be tolerated that an individual registers without any authorization, and uses, or even not uses, domain names incorporating a trademark protected for banking services. It cannot even less be tolerated when the trademark at issue is well-known. Furthermore, the Respondent is currently using the disputed domain names passively. It has long been generally held in previous UDRP decisions that the passive holding of a domain name that incorporates a well-known trademark, without obvious actual or contemplated good faith use, does not necessarily circumvent a finding that the domain name is in use within the requirements of paragraph 4(a)(iii) of the Policy. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The Panels finds that the criteria set out in the Telstra decision on passive holding are met in view of the following and current circumstances: (i) the Complainant’s trademark has a strong reputation and is well-known; (ii) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name; (iii) there is no evidence that the contact details of the registrant are correct; and (iv) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the 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 trademark law. For all the above reasons, the Panel is of the opinion that the disputed domain names satisfy the requirement of paragraph 4(a)(iii) that the disputed domain names were registered and are being used in bad faith by the Respondent. 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 names, Marie-Emmanuelle Haas
Sole Panelist
Date: June 24, 2020
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