Complainant is Confederation Nationale du Credit Mutuel, France, represented by MEYER & Partenaires, France.
Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / UNKNOW UNKNOW, MOODHYPE, Seychelles. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 20, 2020. On May 20, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 20, 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 Complainant on May 26, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 27, 2020. On May 26, 2020, the Center received two email communications from Respondent stating that it is using the disputed domain names as part of a project. 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 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 18, 2020. Respondent did not submit any response. Accordingly, the Center started the Panel appointment process on June 23, 2020. The Center received two further email communications from Respondent on June 23, 2020 in which Respondent asked the Center to contact it. The Center appointed Phillip V. Marano as the sole panelist in this matter on June 26, 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 Complainant is a French cooperative bank based in Strasbourg, France. It services over 7.9 million customer members and operates a network of over 3,178 offices in France. Complainant owns valid and subsisting registrations for the CREDIT MUTUEL trademark in numerous countries and regions, including throughout the European Union, with the earliest priority dating back to July 8, 1988. Respondent registered both the disputed domain names on April 25, 2020. At the time of this Complaint, the disputed domain names were parked by the Registrar with PPC advertising links to numerous financial services in competition with the services offered by Complainant. 5. Parties’ Contentions A. Complainant Complainant asserts ownership of the CREDIT MUTUEL trademark and has adduced evidence of trademark registrations in numerous regions and countries around the world including in France and throughout the European Union, with earliest priority dating back to July 8, 1988. The disputed domain names are confusingly similar to Complainant’s CREDIT MUTUEL trademark, according to Complainant, because it wholly incorporates and identically reproduces the CREDIT MUTUEL trademark, and the generic Top-Level Domains (“gTLD”) “.exchange” and “.email” should be disregarded. Complainant further asserts that Respondent lacks any rights or legitimate interests in the disputed domain names based on: the lack of any relationship between Complainant and Respondent; the lack of any authorization or license from Complainant to Respondent; and the lack of any evidence that Respondent is known by the CREDIT MUTUEL trademark. Complainant argues that Respondent has registered and used the disputed domain names in bad faith for numerous reasons, including: the strong reputation and well-known character of Complainant’s CREDIT MUTUEL trademark; Respondent’s use of a Whois proxy service in order to escape legal responsibility over the disputed domain names; and Respondent’s resolution of the disputed domain names to parking webpages in French with PPC hyperlinks to services in competition with the core activities of Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. However, Respondent did submit two informal communications to the Center, on May 26 and June 23, 2020, which asserted the following: “I intend to market an online mail service. I am open to takeover proposals. If you are referring to cybersquatting this is not the case. Competition can be disloyal but grab other people's ideas, no. You are going to tell me that it is a non domain parking lot? No. the site is being created. You will tell me that there is no society? Yes, but creating a CREDITMUTUELEMAIL company is feasible and legal. I refused to sell this domain name against people who wanted to scam on sending mail, I was told that it was not for sale, that a project on this domain name field was already underway, they offered me $ 100,000 which covers the costs I have advanced for this projects, what do you offer?” “I hope you are fine, call me back” and “It means nothing, Why don't you answer in addition to not sending me the panel so that my business firm takes care of everything?” 6. Discussion and Findings In order to succeed in its Complaint, Complainant must establish in accordance with paragraph 4(a) of the Policy: (i) the disputed domain names are identical or confusingly similar to a trademark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names have been registered and are being used in bad faith. Although Respondent did not submit a formal response to Complainant’s contentions, the burden remains with Complainant to establish by a balance of probabilities, or a preponderance of the evidence, all three elements of paragraph 4(a) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3 (“A respondent’s default would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true. UDRP panels have been prepared to draw certain inferences in light of the particular facts and circumstances of the case, e.g. where a particular conclusion is prima facie obvious, where an explanation by the respondent is called for but is not forthcoming, or where no other plausible conclusion is apparent.”); The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 (“The Respondent’s default does not automatically result in a decision in favor of the complainant. The Complainant must still prove each of the three elements required by Policy, paragraph 4(a)”). A. Identical or Confusingly Similar Ownership of a nationally or regionally registered trademark serves as prima facie evidence that Complainant has trademark rights for the purposes of standing to file this Complaint. WIPO Overview 3.0 , section 1.2.1 . Complainant submitted evidence that the CREDIT MUTUEL trademark has been registered in numerous regions and countries with priority dating back to July 8, 1988, more than 30 years before the disputed domain names were registered by Respondent. Thus, the Panel finds that Complainant’s rights in the CREDIT MUTUEL trademark have been established pursuant to the first element of the Policy. The only remaining question under the first element of the Policy is whether the disputed domain names are identical or confusingly similar to Complainant’s CREDIT MUTUEL trademark. In this Complaint, the disputed domain names are confusingly similar to Complainant’s CREDIT MUTUEL trademark because, disregarding the “.exchange” and “.email” gTLDs, the trademark is contained in its entirety within each of the disputed domain names. WIPO Overview 3.0 , section 1.7 . (“This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name … [I]n cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar...”). gTLDs, such as “.exchange” and “.email” in the disputed domain names, are generally viewed as a standard registration requirement and are disregarded under the first element. WIPO Overview 3.0 , section 1.11 . In view of Complainant’s registration for the CREDIT MUTUEL trademark, and Respondent’s incorporation of that trademark in its entirety in each of the disputed domain names, the Panel concludes that Complainant has established the first element of the Policy. B. Rights or Legitimate Interests Complainant must make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain names, shifting the burden of production on this element to Respondent to come forward with evidence demonstrating such rights or legitimate interests. Where, as in this Complaint, Respondent fails to come forward with any relevant evidence, and Respondent merely asserts intended use in connection with an “online mail service” in informal correspondence to the Center devoid any supporting evidence, Complainant is deemed to have satisfied the second element of the Policy. WIPO Overview 3.0, section 2.1. It is evident that Respondent, identified by revealed registration data for the disputed domain names as “Unknow”, or “MoodHype”, or “thehumanhype”, is not commonly known by the disputed domain names or Complainant’s CREDIT MUTUEL trademark. The service of PPC advertisements through the disputed domain names attempts to trade off the goodwill of Complainant and accordingly cannot constitute any bona fide offering of goods or services using the disputed domain names. WIPO Overview 3.0, section 2.9 (Unless “genuinely related to the dictionary meaning” of the disputed domain names, “PPC links do not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of Complainant’s mark or otherwise mislead Internet users.”) Moreover, while the informal communications submitted by Respondent to the Center lack any evidence that could be construed as supporting rights or legitimate interests in the disputed domain names, they do appear to contain a solicitation for a “takeover proposal” indicating “they offered me USD 100,000 which covers the costs I have advanced for this projects, what do you offer”. Accordingly, the Panel finds that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services. This is especially the case where a disputed domain name is so obviously connected with a complainant and its products, the very use, let alone monetize or offer to sell, by a registrant with no connection to the complainant suggests opportunistic bad faith. The Panel concludes from the record that Respondent had Complainant’s CREDIT MUTUEL trademarks in mind when registering the disputed domain names, and that Respondent most likely registered the disputed domain names in order exploit and profit from Complainant’s trademark rights. In view of the absence of any evidence supporting any rights or legitimate interests in the disputed domain names, and Respondent’s attempts to monetize through PPC links (or sell the disputed domain names) in opportunistic bad faith, the Panel concludes that Complainant has established the second element of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy proscribes the following non-exhaustive circumstances as evidence of bad faith registration and use of the disputed domain name: (i) circumstances indicating that Respondent has registered or Respondent has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark to a competitor of that Complainant, for valuable consideration in excess of Respondent’s documented out of pocket costs directly related to the disputed domain name; or (ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. Based upon the evidence in this matter, even taking into account the informal communications submitted by Respondent, the Panel agrees with Complainant that the disputed domain names were registered and used in bad faith by Respondent. First, Respondent’s third-party generated material, namely two parking websites that contain PPC links to services in competition with Complainant, are strong evidence of registration and use in bad faith. Such materials, regardless of the fact it was generated by the Registrar, cannot be disclaimed by Respondent. WIPO Overview 3.0, section 3.5 (“A respondent cannot disclaim responsibility for content appearing on the website associated with its domain name” regardless of whether “such links [are] generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that respondent itself may not have directly profited….”). See SAP SE v. Domains by Proxy, LLC / Kamal Karmakar,WIPO Case No. D2016-2497 (“It is well established that where a domain name is used to generate revenue in respect of ‘click through’ traffic, and that traffic has been attracted because of the name’s association with the Complainant, such use amounts to use in bad faith … Revenue will be generated by such visitors clicking on the provided links and it does not matter whether that revenue accrues to the Respondents or the operator of the parking site”) (internal citations omitted). Second, where it appears that a respondent employs a privacy or proxy service merely to avoid being notified of a UDRP proceeding filed against it, UDRP panels tend to find that this supports a further inference of bad faith. WIPO Overview 3.0, section 3.6. Use of a privacy or proxy registration service to shield a respondent’s identity and elude or frustrate enforcement efforts by a legitimate complainant demonstrates bad-faith use and registration of a disputed domain name. See Fifth Third Bancorp v. Secure Whois Information Service,WIPO Case No. D2006-0696 (the use of a proxy registration service to avoid disclosing the identity of the real party in interest is also consistent with an inference of bad faith when combined with other evidence of evasive, illegal, or irresponsible conduct). And finally, registration of the disputed domain names with intent to profit by exploiting Complainant’s trademark and selling that domain name constitutes axiomatic bad faith registration and use under paragraph 4(b)(i) of the Policy. As in this case, bad faith is evident where Respondent clearly has knowledge of Complainant’s trademarks, the website content associated with the disputed domain names targets the Complainant and highlights its competitors, and Respondent offers to sell the disputed domain names (or at least is asking what Complainant would be offering) upon notice that the Complaint was filed. WIPO Overview 3.0 , section 3.1.1 . Again, Respondent unashamedly solicited “takeover proposals” from the Center and offered to sell the disputed domain names citing previously rejected offers of USD 100,000 to cover the costs it had advanced for its project. This is far in excess of any conceivable or apparent registration costs and it falls well within paragraph 4(b)(i) of the Policy. Respondent’s solicitation and citation of this price are clear evidence of Respondent’s opportunistic bad faith intention to acquire and sell the disputed domain names, which are identical or confusingly similar to Complainant’s CREDIT MUTUEL trademark. 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 Phillip V. Marano
Sole Panelist
Date: July 7, 2020
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