The Complainant is BPCE, France, represented by DBK – Société d’avocats, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Matthew Hodges, big bit Ltd, Samoa. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10 and 15, 2020. On December 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 December 30, 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 January 5, 2021. 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 January 11, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 31, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 2, 2021. The Center appointed Adam Taylor as the sole panelist in this matter on March 4, 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 the second largest banking group in France. One of the Complainant’s banks, Banque Populaire, uses the brand “Cyberplus” for its online and banking services including on a website at “www.cyberplus.fr”. The Complainant owns International Registration no. 647939 for CYBERPLUS, registered on December 13, 1995, in classes 36 and 38. The disputed domain name was registered on November 2, 2020. Per screenshots provided by the Complainant, as of December 7, 2020 and at present, the disputed domain name was used for a website in Russian that appeared to promote a mobile application offering financial-related services. 5. Parties’ Contentions A. Complainant The disputed domain name is identical to the Complainant’s trade mark. The Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant has never authorised the Respondent to use its trade marks. The Respondent has not made a legitimate noncommercial or fair use of the disputed domain name or a bona fide offering of goods or services. Instead, the Respondent has used the disputed domain name to promote services competing with those of the Complainant. The disputed domain name was registered and is being used in bad faith. The Complainant is well-known in France and worldwide and its trade marks predate registration of the disputed domain name. Accordingly, the disputed domain name was deliberately selected to create a likelihood of confusion with the Complainant’s trade marks and it has been used to offer banking and financial services similar to those of the Complainant. The fact that the Respondent has chosen to remain anonymous is further evidence of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under the Policy, the Complainant is required to prove on the balance of probabilities that: - the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights; - the Respondent has no rights or legitimate interests in respect of the disputed domain name; and - the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established rights in the mark “Cyberplus” by virtue of its registered trade marks as well as unregistered trade mark rights deriving from its extensive use of that name. Disregarding the generic Top-Level domain name suffix, the disputed domain name is identical to the Complainant’s trade mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7). The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests As explained in section 2.1 of WIPO Overview 3.0 , the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element. Here, the Complainant, the second largest banking group in France, has not licensed or otherwise authorised the Respondent to use its trade mark (registered for many decades). Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests. As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse and profit from Internet users seeking the Complainant’s products and services. Such use of the disputed domain name could not be said to be bona fide. Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case. The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent. The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The Panel is satisfied that the Respondent registered the disputed domain name with the Complainant’s trade mark in mind. Not only does the Complainant’s registration and use of the mark “Cyberplus” long pre-date registration of the disputed domain name, but also the Respondent has used the disputed domain name to offer similar services to those of the Complainant despite there being no other obvious connection between the disputed domain name and those services. In the Panel’s view, the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trade mark. The likelihood of confusion that is not diminished by the possibility that at some point users arriving at the Respondent’s site may realise that it is not connected with the Complainant (e.g., because the website is in Russian, though this is alone not necessarily dispositive given the global reach of many businesses including banks nowadays). Paragraph 4(b)(iv) of the Policy is concerned with the intentional attracting of Internet users. Here, the disputed domain name creates an implied risk of affiliation with the Complainant, and the Respondent, profits from at least some of the traffic intended for the Complainant. Furthermore, the Respondent has not come forward to deny the Complainant’s assertions of bad faith or to otherwise advance a reason for having registered the disputed domain name. The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) 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, Adam Taylor
Sole Panelist
Date: March 18, 2021
Full & Egal Universal Law Academy