The Complainant is Confédération Nationale du Crédit Mutuel, France, represented by MEYER & Partenaires, France.
The Respondent is Whois Agent, Domain Protection Services, Inc., United States of America / Patrick Eonnet, 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 June 4, 2020. On June 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 5, 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 June 8, 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 June 9, 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 June 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 1, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 21, 2020. The Center appointed Christiane Féral-Schuhl as the sole panelist in this matter on July 29, 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 Confédération Nationale Du Crédit Mutuel, which is the political and central body for the banking group Credit Mutuel. Credit Mutuel is the second French banking and insurance services group, providing its services to 12 million clients for more than a century. The Complainant is the owner of numerous trademarks, in France and abroad, including: - The French (semi-figurative) trademark “CREDIT MUTUEL” No. 1475940 registered on July 8, 1988, in classes 35 and 36, duly renewed; - The French (semi-figurative) trademark “CREDIT MUTUEL” No. 1646012 registered on November 20, 1990, in classes 16, 35, 36, 38 and 41, duly renewed; - The European Union (word) trademark “CREDIT MUTUEL” No. 009943135 registered on October 20, 2011 in classes 9, 16, 35, 36, 38, 41, 42 and 45; and, - The international (semi-figurative) trademark “CREDIT MUTUEL” No. 570182 registered on May 17, 1991 in classes 16, 35, 36, 38 and 41, duly renewed. The Complainant also owns multiple domain names, including: - - - - < creditmutuel.com>, registered on October 28, 1995 and duly renewed since then; and, - The disputed domain names In accordance with paragraph 3(b)(ix) of the Rules, the legal and factual elements on which the Complainant relies are set out below. First of all, the Complainant asserts that the disputed domain names are highly similar to its prior trademarks, since they consist of a misspelling of the CREDIT MUTUEL trademarks and the generic Top-Level Domain (“gTLD”) “.com”. The Complainant considers that misspellings such as this addition of letters “l”, “u” or “f” do not prevent a finding of confusing similarity, and that as a typosquatting registration, it is designed to confuse. Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain names, since the Respondent is not related in any way to the Complainant’s business and has never been known under the wordings “creditlmutuel”, “fcreditmutuel” or “u creditlmutuel”. The Complainant underlines that no license or authorization has been granted to the Respondent to make any use or apply for registration of the disputed domain names. Finally, the Complainant claims that the disputed domain names were registered and are used in bad faith. The Complainant argues that the Respondent could not have ignored the reputation of the CREDIT MUTUEL trademarks at the time it registered the disputed domain names, and that it is unlikely that the Respondent has chosen these names for any other reason than seeking to create an impression of association with the Complainant’s fame and reputation, typosquatting itself being evidence of bad faith registration. The Complainant adds that the disputed domain names The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of the disputed domain name, the Complainant shall prove the following three elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (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. A. Identical or Confusingly Similar According to the Policy, paragraph 4(a)(i), the Complainant shall prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. First of all, the Panel finds that the Complainant has provided evidence that it has rights in the CREDIT MUTUEL trademark. Then, the Panel notices that the disputed domain name The disputed domain name The disputed domain name The applicable gTLD in a domain name is viewed as a standard registration requirement and as such is disregarded for the purpose of determining whether a domain name is identical or confusingly similar to a trademark. The Panel wishes to remind that the first element of the UDRP serves essentially as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the domain name. 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. In 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 to that mark for purposes of the UDRP (see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDPR Questions, Third Edition (“WIPO Overview 3.0”)). Moreover, the Panel concurs with the opinion of several prior UDRP panels which have considered that a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered to be confusingly similar to the relevant mark for purposes of the first element (see section 1.9 of the WIPO Overview 3.0). Regarding the disputed domain names, the Panel finds that the addition of letters “l”, “f” or “u” to the CREDIT MUTUEL trademark constitute intentional misspelling of the CREDIT MUTUAL trademark, which does not exclude confusing similarity between the disputed domain names and the Complainant’s trademarks. Therefore, the Panel holds that the Complainant has established the first element of paragraph 4(a) of the Policy and that the disputed domain names are confusingly similar to the Complainant’s trademarks. B. Rights or Legitimate Interests According to the Policy, paragraph 4(a)(ii), the Complainant shall demonstrate that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy, paragraph 4(c), outlines circumstances that if found by the Panel to be proved shall demonstrate 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 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 (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent 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. According to prior UDRP panel decisions, it is sufficient that the complainant shows prima facie that the respondent lacks rights or legitimate interests in the disputed domain name in order to shift the burden of production to the respondent (see Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). Indeed, while the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out prima facie 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 (see section 2.1 of the WIPO Overview 3.0). According to the Panel, the Complainant has shown prima facie that the Respondent has no rights or legitimate interests in respect of the disputed domain names. Moreover, one of the disputed domain names does not resolve to an active website and the two others resolve to parking websites, which, in either case, does not represent a bona fide offering of goods or services. In addition, the Respondent does not appear to be commonly known by the disputed domain names. Furthermore, the Respondent did not reply to the Complainant’s contentions. Therefore, the Panel considers that the Respondent does not have rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith According to the Policy, paragraph 4(a)(iii), the Complainant shall prove that the disputed domain name has been registered and are being used in bad faith. Thus, paragraph 4(b) provides that any one of the following non-exclusive scenarios constitutes evidence of a respondent’s bad faith: “(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name 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 its 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.” Section 3.3 of the WIPO Overview 3.0 provides that different factors are relevant in determining a finding of bad faith under the doctrine of passive holding, including: (i) the degree of distinctiveness or reputation of the complainant’s mark, (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 or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put. First of all, the Panel finds that it is established that the Complainant’s trademarks were registered before the registration of the disputed domain names. Moreover, the Panel finds that the Respondent knew, or should have known, that its registrations would be confusingly similar to the Complainant’s trademark, given the reputation of the Complainant’s trademark and the fact that the disputed domain names reproduce the CREDIT MUTUEL trademark in its entirety, even if misspelled in the disputed domain names. In fact, this typosquatting even tends to highlight the bad faith registration of the disputed domain names, since misspelling a trademark implies knowing that trademark first. Furthermore, in respect of the disputed domain name Indeed, doing so, the Panel finds that the Respondent intentionally attempted to passively hold this disputed domain name, by creating a likelihood of confusion with the CREDIT MUTUEL trademark. Then, in respect of the disputed domain names Indeed, doing so, the Panel finds that the Respondent used these disputed domain names to divert Internet users seeking the Complainant’s official website to its competitors’ websites, for the purpose of disrupting the Complainant’s business. Consequently, in view of all the circumstances of this case, the Panel finds that the disputed domain names have been registered and are being used in bad faith according to Policy, paragraph 4(a)(iii). 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, Christiane Féral-Schuhl
Sole Panelist
Date: August 12, 2020
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