The Complainant is Boursorama S.A., France, represented by Nameshield, France.
The Respondent is David Lopez, Spain. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 1, 2020. On October 1, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 30, 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 November 6, 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 November 6, 2020. Furthermore, the Registrar confirmed that the registration agreement was in German. The Center sent a language of the proceedings email allowing the Parties to comment on December 16, 2020. On December 16, 2020, the Complainant provided arguments for English to be the language of the proceedings. The Respondent did not submit any response to the language of the proceedings. 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 in both English and German, and the proceedings commenced on December 22, 2020. In accordance with the Rules, paragraph 5, the due date for the Response was January 11, 2021. On January 21, 2021, due to an issue with the notification, the Respondent was granted a ten-day period through January 31, 2021, to indicate whether it wished to participate in these proceedings. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 1, 2021. The Center appointed Tobias Zuberbühler as the sole panelist in this matter on February 5, 2021. 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 was founded in 1995 and is a French leader in its three core businesses online brokerage, financial information on the Internet and online banking, with over 2.3 million customers. The Complainant owns trademark registrations in several jurisdictions, including the European Union trademark BOURSORAMA (Reg. No. 001758614, registered on October 19, 2001). The Complainant further holds the domain name The disputed domain name was registered on September 30, 2020, and resolved to a website titled “Espace Client” (which means “customer area” in French), copied to look identical to the Complainant’s official customer access website and asking Internet users to indicate their ID number and password. In the meantime, the website has been deactivated. 5. Parties’ Contentions A. Complainant The Complainant alleges that it has satisfied all elements of the Policy, paragraph 4. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings On the basis of the facts and evidence introduced by the Complainant, and with regard to paragraphs 4(a), (b) and (c) of the Policy, the Panel concludes as follows: A. Language of the Proceedings While the Registration Agreement for the disputed domain name is in German, the Complainant has pointed out in its email correspondence of December 16, 2020, that the English language is the language most widely used in international relations and one of the working languages of the Center and that in order to proceed in German, the Complainant would have had to retain specialized translation services at a cost very likely to be higher than the overall costs of these proceedings. The use of German in this case would therefore impose a burden on the Complainant which must be deemed significant in view of the low costs of these proceedings. Therefore, the Complainant has requested English to be the language of the proceedings. Paragraph 11(a) of the Rules stipulates that, “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”. Taking into account the circumstances of this case, the Panel does not consider it prejudicial to the Respondent if English were adopted as the language of the proceedings. The Panel notes that the relevant case related communications were sent in both English and German and that the Respondent did not reply to any of those communications or comment on the language of the proceedings. The Panel also finds that substantial additional expense and delay would likely be incurred if the Complaint had to be translated into German. In view of the Policy aim of facilitating a time- and cost-efficient procedure for the resolution of domain name disputes, the Panel finds it appropriate to exercise its discretion according to paragraph 11(a) of the Rules and allow the proceedings to be conducted in English. B. Identical or Confusingly Similar The Complainant has submitted sufficient evidence to demonstrate its registered rights in the trademark. The BOURSORAMA trademark is wholly reproduced in the disputed domain name. A domain name is “identical or confusingly similar” to a trademark for the purposes of the Policy when the domain name includes the trademark, or a confusingly similar approximation, regardless of other terms in the domain name (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662). As stated in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8, “[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements”. Hence, the Panel holds that the addition of the term “-contacts” to the Complainant’s BOURSORAMA trademark does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark. The Complainant has thus fulfilled the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. The Complainant contends that the Respondent is neither affiliated with the Complainant nor making any bona fide use of the disputed domain name. The Complainant has credibly demonstrated that the Respondent used the disputed domain name for collecting user data, including personal details and passport details, by exactly copying the Complainant’s official customer access website. This cannot be considered as a bona fide offering of goods or services or a noncommercial use. Furthermore, the composition of the disputed domain name, wholly incorporating the Complainant’s trademark and the term “-contacts”, cannot constitute fair use in these circumstances as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. See WIPO Overview 3.0, section 2.5.1. The Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith Under the circumstances of this case, including the composition of the disputed domain name and reputation of the Complainant’s trademark, it can be inferred that the Respondent was aware of the Complainant’s trademark when registering the disputed domain name. The evidence and allegations submitted by the Complainant support a finding that the Respondent was engaged in an attempt to pass himself off as the Complainant and to use the disputed domain name for his own commercial benefit. The Respondent therefore used the disputed domain name in bad faith (see Claudie Pierlot v. Yinglong Ma,WIPO Case No. D2018-2466). The fact that the website at the disputed domain name has been deactivated does not prevent a finding of bad faith. Accordingly, the Complainant has also fulfilled paragraph 4(a)(iii) 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 Tobias Zuberbühler
Sole Panelist
Date: February 19, 2021
Full & Egal Universal Law Academy