The Complainant is Credit Mutuel ARKEA, France, represented by Nameshield, France.
The Respondent is R Vol, Turkey. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 25, 2020. On November 26, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 30, 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. The Registrar also indicated that the language of the Registration Agreement was Turkish. The Center sent an email communication in English and Turkish, to the Parties on November 30, 2020, inviting the Complainant to provide sufficient evidence of an agreement between the Parties for English to be the language of the proceeding, a Complaint translated into Turkish, or a request for English to be the language of the proceeding. The Complainant filed a request for English to be the language of the proceeding on November 30, 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, and the proceedings commenced on December 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 28, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 29, 2020. The Center appointed Kaya Köklü as the sole panelist in this matter on January 14, 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 is a cooperative and mutual bank insurance group with its registered seat in France. It was first established in 1911 and is mainly active in the field of banking and insurance services (Annex 3 to the Complaint). The Complainant owns various ARKEA trademark registrations. According to the Complaint, the Complainant is, inter alia, the registered owner of the French Trademark Registration for ARKEA, No. 96636222 (registered on July 26, 1996) and the French Trademark Registration for ARKEA TECHNOSERVICES, No. 3831995 (registered on May 17, 2011), both covering trademark protection, inter alia, for banking and insurance services in class 36 (Annex 4 to the Complaint). The Complainant’s trademark registrations are in the following jointly referred to as “the ARKEA trademarks”, whenever appropriate. Since almost 20 years, the Complainant also owns and operates its official website at “www.arkea.com” (Annex 5 to the Complaint). The Respondent appears to be located in Turkey, whereas the true identity of the Respondent remains unknown as its name in the WhoIs records for the disputed domain name is incomplete and apparently incorrect. The disputed domain name was registered on November 17, 2020. The screenshots, as provided by the Complainant (Annex 6 to the Complaint), show that the disputed domain name resolved to a website in the English language, which was apparently an unfinished website template only. At the time of the decision, the disputed domain name does no longer resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant is of the opinion that the disputed domain name is confusing similar to its ARKEA trademarks. Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is particularly argued that the disputed domain name falsely suggests that there is some official or authorized link between the Complainant and the Respondent. Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding The Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of the administrative proceeding shall be English. Although the language of the Registration Agreement is Turkish, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceeding in Turkish and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint or respond to the Center’s communication about the language of the proceeding, even though communicated in Turkish and in English. The Panel notes that the Respondent was given the opportunity to respond in Turkish and that this opportunity remained unused by the Respondent. Bearing also in mind that the disputed domain name resolved to a website template in English language (Annex 6 to the Complaint), the Panel is convinced that the Respondent will not be prejudiced by a Decision being rendered in English. 6.2. Substantive Issues According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and (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. Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228. However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views stated therein. A. Identical or Confusingly Similar The Panel finds that the Complainant has registered trademark rights in the mark ARKEA by virtue of various trademark registrations. The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered trademarks, as it fully incorporates the ARKEA trademark. As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would generally not prevent a finding of confusing similarity. The mere addition of the abbreviation “tech” (probably standing for “technology”) does, in view of the Panel, not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s ARKEA trademarks. Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name. While the burden of proof on this element remains with the Complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c). In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights (particularly not license) or legitimate interests to use the Complainant’s ARKEA trademarks in a confusingly similar way within the disputed domain name. There is also no indication in the current record that the Respondent is commonly known by the disputed domain name. In the absence of a response, the Respondent has additionally failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name. As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel is convinced that the Respondent must have had the Complainant’s trademark in mind when registering the disputed domain name in November 2020. The nature of the disputed domain name even indicates that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant and targeting the diversion of Internet traffic. With respect to the use of the disputed domain name in bad faith, as already indicated before, the disputed domain name has apparently yet been linked to an immature website template only. Nonetheless, and in line with the previous UDRP decisions (Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003) and section 3.3 of the WIPO Overview 3.0, the Panel believes that even a non-use of a domain name does not prevent a finding of bad faith use. Applying the passive holding doctrine as summarized in section 3.3 of the WIPO Overview 3.0, the Panel assesses the Complainant’s non-dictionary ARKEA trademarks as sufficiently distinctive, so that any descriptive use of the Complainant’s trademark by the Respondent seems unlikely. Furthermore, the Panel accepts the failure of the Respondent to submit a response to the Complainant’s contentions as an additional indication for bad faith use. Additionally, the Panel notes that it cannot conceive of any plausible and legitimate use of the disputed domain name that would be in good faith, except with an authorization of the Complainant. Particularly, as the disputed domain name fully incorporates the ARKEA trademark, the Panel is of the opinion that any active website linked to the dispute domain name would likely cause the false impression that it is operated or at least endorsed or authorized by the Complainant. Finally, the Panel believes that the Respondent has deliberately opted for hiding its true identity in order to prevent an efficient enforcement of legitimate trademark rights by the Complainant. Taking all circumstances of this case into consideration, the Panel concludes that in the present case even the yet passive holding of the disputed domain name indicates bad faith use by the Respondent. The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, 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 Kaya Köklü
Sole Panelist
Date: January 27, 2021
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