The Complainant is Belfius Bank S.A. / Belfius Bank N.V., Belgium, represented by Nelly Imandt, Belgium.
The Respondent is Adjiwanou Benoit, 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 July 15, 2020. On July 15, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 13, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On August 13, 2020, the Center transmitted an email in English and French to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on August 19, 2020. The Respondent did not comment on the language of the proceeding. The Center verified that the 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 in both French and English, and the proceedings commenced on August 27, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 16, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 18, 2020. The Center appointed William Lobelson as the sole panelist in this matter on September 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 is a Belgian bank and financial services provider with a solid reputation in Belgium and beyond. According to the Complainant, its activities are focused on the Belgian territory, nevertheless, its trademark is also shown outside Belgium as it sponsors several national sports teams and sports events. The Complainant is the owner of numerous trademarks including the word mark BELFIUS, which is an invented word composed of “Bel” as in Belgium, “fi” as in finance and the English word “us”. For example, the Complainant is the owner of the European Union Trade Mark BELFIUS (word) No. 010581205, registered on May 24, 2012, and covering goods and services in classes 9, 16, 35, 36, 41, 45. The Complainant is the registrant to the domain name The Complainant is also the registrant of the domain name The Respondent has registered the disputed domain name The Complainant was unable to contact the Respondent, a cease and desist was sent to the contact address listed as the registrant’s mail address but remained unanswered. The Registrar was also contacted in order to obtain the transfer of the domain name but to no avail. 5. Parties’ Contentions A. Complainant The Complainant claims that the disputed domain name is confusingly similar to its earlier trademark, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the disputed domain name has been registered and is being used in bad faith. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects under the Rules set out in paragraph 4(a) of the Policy. Namely, the Complainant must prove that: (i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name (paragraph 4(a)(ii)); and (iii) the disputed domain name has been registered and is being used in bad faith (paragraph 4(a)(iii)). A. Language of the proceeding Pursuant to paragraph 11 of the UDRP Rules, unless otherwise agreed by the parties, the default language of the proceeding is the language of the registration agreement, subject to the authority of the panel to determine otherwise. Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. In this case the Registrar has confirmed the language of the registration is French. Noting the Complainant’s request to proceed in English, that the website is inactive and the Respondent did not object and did not reply, the Panel accepts that the language of the proceeding shall be in English. B. Identical or Confusingly Similar The Complainant is the owner of numerous BELFIUS trademarks, all registered and used in relation with banking services. The disputed domain name reproduces the Complainant’s trademark BELFIUS in its entirety. Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise), in this case the dictionary French word “banque” (French for “bank”), 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”). The addition of the generic Top-Level Domain “.net” does not either prevent a finding of confusing similarity. From the standpoint of Internet users seeking or expecting the Complainant, the disputed domain name shall be considered as being owned by – or being registered with the consent of the Complainant. Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests To demonstrate rights or legitimate interests in a domain name, non-exclusive respondent defenses under UDRP paragraph 4(c) include the following: (i) before any notice of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods and services; (ii) the Respondent (as an individual, business or other organization) has been commonly known by the disputed 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 disputed domain name, without intent for commercial gain to misleading divert consumers or to tarnish the trademark or service mark at issue. The Panel notes that the Respondent has not filed a response and thus did not deny the Complainant’s assertions, nor brought any information or evidence for demonstrating any rights or legitimate interests. The Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that the Respondent is not affiliated with it in any way and that it never authorized the Respondent to use its trademark as part of the disputed domain name. The Complainant further contends that the Respondent is not known under the disputed domain name, does not own any proprietary rights in the name BELFIUS and does not make any bona fide use - neither commercial nor noncommercial, of the same, being emphasized that the disputed domain name does not resolve towards any active web page. The Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith The Complainant claims that the Respondent has registered the disputed domain name and uses the same in bad faith, even though the said domain name does not resolve towards any active web page. It is a consensus view among UDRP panels that, with comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The Panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the Complainant having a well-known trademark, no response to the Complaint having been filed, and the Respondent’s concealment of its identity. UDRP panels may draw inferences about whether a domain name was used in bad faith given the circumstances surrounding registration. The Panel concurs with the Complainant when the latter claims that the Respondent should have checked the availability of the name BELFIUS before registering the disputed domain name. Besides, the Panel observes that the Respondent made the choice of associating to the trademark BELFIUS the dictionary French word “banque” (French for bank) which directly refers to the field of activity of the Complainant. The fact that the Respondent added the word “banque” to the trademark BELFIUS, cannot be a coincidence and for this Panel it is a clear indication that he necessarily had the Complainant’s trademark in mind when he registered the disputed domain name The Complainant further states that the contact details of the Respondent do not seem to be complete or accurate. The disputed domain name does not resolve to any active web page. As stated in WIPO Overview 3.0, section 3.3, there is a consensus view about “passive holding”: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (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.” Such passive holding is to be regarded as use in bad faith (Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574; Ladbroke Group Plc v. Sonoma International LDC,WIPO Case No. D2002-0131; Westdev Limited v. Private Data,WIPO Case No. D2007-1903; Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393; Intel Corporation v. The Pentium Group,WIPO Case No. D2009-0273). See also, Confédération Nationale du Crédit Mutuel v. Nicola Bazar,WIPO Case No. D2013-1572: “Respondent knew or should have known that the Domain Name included Complainant’s CREDIT MUTUEL well-known trademark. […] However, passive holding of the website does not prevent the Panel from finding registration and use in bad faith. The Panel further notes that Respondent undeveloped use of the website at the Domain Name which incorporates Complainant’s trademark in its entirety indicates that Respondent possibly registered the Domain Name with the intention to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship, affiliation, or endorsement of its website or location or of a service on its website or location, as per paragraph 4(b)(iv) of the Policy.” Furthermore, in the present case, the Complainant indicates that a cease-and-desist letter was served to the Respondent, who did not respond thereto. The Complaint was also duly notified to the Respondent, who did not file any observations in response. The Panel deems that the Respondent has therefore been notified of the Complainant’s earlier rights. Not only did he not justify himself, but he did not either grant back the disputed domain name to the Complainant, while being made aware of the violation of the Complainant’s rights. The Panel regards this behavior as an unjustified withholding of the disputed domain name, which reveals a bad faith passive use thereof. Consequently, in view of all the above circumstances, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy are satisfied. 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 William Lobelson
Sole Panelist
Date: October 9, 2020
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