The Complainant is Arkea Direct Bank, France, represented by Nameshield, France.
The Respondent is Domain Admin, Privacy Protect, LLC (PrivacyProtect.org), United States of America (“United States”) / ado nicolas, ado nicolas nicolas, 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 May 11, 2020. On May 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 12, 2020, 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 13, 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 May 14, 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 May 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 17, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 18, 2020. The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on June 25, 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, Arkéa Direct Bank, is active in the banking sector, including under the business name “Fortuneo”. In that regard, the Complainant refers to a web page stating that Fortuneo is a subsidiary of Crédit Mutuel Arkéa, but does not specify the link with the Complainant, which is named Arkéa Direct Bank. However, the Panel was able to find proof of such link. Crédit Mutuel Arkéa has more than 800,000 customers in France, Belgium, Switzerland, and Luxembourg. The Complainant is the owner of several trademarks including the term “FORTUNEO”, such as: - French word mark FORTUNEO number 99823905 registered since November 18, 1999 in classes 35, 36, 38, 40, 41, 42, and 45; The Disputed Domain Name The Complainant considers the Disputed Domain Name to be confusingly similar to a trademark in which it claims to have rights. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. According to the Complainant, the Respondent has not used the Disputed Domain Name in connection with a legitimate use. Also, according to the Complainant, the Respondent has not been commonly known by the Disputed Domain Name and is in no way affiliated with the Complainant. Finally, the Complainant claims that the Disputed Domain Name was registered and is being used in bad faith. The Complainant claims that the Respondent has registered the Disputed Domain Name primarily to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer the Disputed Domain Name. As the UDRP proceedings are administrative, the standard of proof is the balance of probabilities. Thus, for the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy, that: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and The Panel will therefore deal with each of these requirements. A. Identical or Confusingly Similar To prove this element, the Complainant must first establish that there is a trademark or service mark in which it has rights. The Complainant has clearly established that there are trademarks in which it has rights. The Complainant’s FORTUNEO trademarks have been registered and used in various countries in connection to the Complainant’s banking services. The Disputed Domain Name incorporates the Complainant’s trademark in its entirety, simply preceding it with the word “group” and a hyphen. Where the relevant trademark is recognizable within the Disputed Domain Name, the addition of other terms would not prevent a finding of confusing similarity under the first element (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). Additionally, it is well established that the generic Top-Level Domain (“gTLD”), here “.com”, may be disregarded when considering whether the Disputed Domain Name is confusingly similar to a trademark in which the Complainant has rights. In light of the above, the Panel considers the Disputed Domain Name to be confusingly similar to the Complainant’s FORTUNEO trademark. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. As established by previous UDRP panels, it is sufficient for the Complainant to make a prima facie showing that the Respondent has no rights or legitimate interests in the Disputed Domain Name in order to place the burden of production on the Respondent (see section 2.1 of the WIPO Overview 3.0). The Panel notes that the Respondent has not apparently been commonly known by the Disputed Domain Name and that the Respondent does not seem to have acquired trademark or service mark rights. According to the WhoIs records connected to the Disputed Domain Name, the Respondent is “ado nicolas”. The Respondent’s use and registration of the Disputed Domain Name was not authorized by the Complainant. There are no indications that a connection between the Complainant and the Respondent exists or existed. Where a domain name consists of a trademark plus an additional term, UDRP panels have largely held that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner (see section 2.5.1 of the WIPO Overview 3.0). The Disputed Domain Name incorporates the Complainant’s FORTUNEO trademark and adds the word “group”, which is descriptive and could be considered to refer to a group of companies related to the Complainant. Therefore, the Panel finds that the Disputed Domain Name carries a high risk of implied affiliation with the Complainant and cannot constitute fair use. Beyond looking at the domain name and the nature of any additional terms appended to it, UDRP panels assess whether the overall facts and circumstances of the case, such as the content of the website linked to the disputed domain name and the absence of a response, support a fair use or not (see sections 2.5.2 and 2.5.3 of the WIPO Overview 3.0). Based on the evidence provided by the Complainant, the Panel observes that the website linked to the Disputed Domain Name seems to offer services similar or even identical to the Complainant’s banking services. Moreover, the website also mentions the Complainant’s FORTUNEO trademark several times. In the Panel’s view, this does not amount to a legitimate noncommercial or fair use of the Disputed Domain Name. The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted. Therefore, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the Disputed Domain Name. In light of the above, the Complainant succeeds on the second element of the Policy. C. Registered and Used in Bad Faith The Complainant must prove on the balance of probabilities both that the Disputed Domain Name was registered in bad faith and that it is being used in bad faith (see section 4.2 of the WIPO Overview 3.0 and, for example, Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052). Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. Among these factors demonstrating bad faith registration and use is the use of a domain name to intentionally attempt to attract, for commercial gain, Internet users to a 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 website or location or of a product or service on the website or location. In the present case, the Panel finds that it is more likely than not that the Respondent was aware of the Complainant and its trademark rights when it registered the Disputed Domain Name. The Disputed Domain Name includes the Complainant’s distinctive trademark in its entirety, and the website linked to the Disputed Domain Name offers services similar to the Complainant’s services. In the Panel’s view, the Respondent’s awareness of the Complainant’s trademark rights at the time of registration suggests bad faith (see Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz,WIPO Case No. D2011-2209; BellSouth Intellectual Property Corporation v. Serena, Axel,WIPO Case No. D2006-0007, where it was held that the respondent acted in bad faith when registering the disputed domain name, because widespread and long-standing advertising and marketing of goods and services under the trademarks in question, the inclusion of the entire trademark in the domain name, and the similarity of products implied by addition of a telecommunications services suffix (“voip”) suggested knowledge of the complainant’s rights in the trademarks). The Respondent has been using the Disputed Domain Name incorporating the Complainant’s trademark to promote services similar to the Complainant’s banking services. In the Panel’s view, this indicates that the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trademark. By failing to respond to the Complaint, the Respondent did not take any initiative to contest the foregoing. Pursuant to paragraph 14 of the Rules, the Panel may draw the conclusions it considers appropriate. Therefore, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the Disputed Domain Name was registered and is being used in bad faith. In light of the above, the Complainant also succeeds on the third and last 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 Flip Jan Claude Petillion
- European Union word mark FORTUNEO PLUS number 008714586 registered since April 29, 2010 in classes 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.
Sole Panelist
Date: July 3, 2020
Full & Egal Universal Law Academy