The Complainant is Confederation Nationale Du Credit Mutuel, France, represented by MEYER & Partenaires.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / tadouri nadia, 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 January 28, 2021. On January 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On January 29, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 1, 2021 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 February 4, 2021. The Center verified that the Complaint together with the amendment to 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 February 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 25, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 26, 2021. The Center appointed Vincent Denoyelle as the sole panelist in this matter on March 8, 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 following facts are based on the submissions in the Complaint and the Annexes to the Complaint. The Complainant is a French group of companies specialized in banking and insurance services. The Complainant is the owner of several trade marks for CREDIT MUTUEL including the following: - European Union Trade Mark CREDIT MUTUEL No. 18130616, registered on September 2, 2020 and; - European Union Trade Mark CREDIT MUTUEL No. 16130403, registered on June 1, 2017. The Complainant is also the owner of several domain names reflecting its trade mark. Both Domain Names were registered on November 27, 2020. At the time of the Complaint, the Domain Name The Complainant contends that the Domain Names are confusingly similar to the CREDIT MUTUEL trade mark in which the Complainant has rights as the Domain Names incorporate the entire CREDIT MUTUEL trade mark with the mere addition, respectively, of the two descriptive terms “id” and “monespce” (a misspelling of “my space” meaning “mon espace” in French) and that such addition to each of the Domain Names does not prevent the likelihood of confusion between the Domain Names and the Complainant’s trade mark. The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Names. The Complainant states that the Respondent is not known to the Complainant. The Complainant contends that the Respondent is not related in any way to the Complainant's business and also that the Respondent has never been known by either of the Domain Names. Finally the Complainant asserts that no license or authorisation has been granted to the Respondent to register or use the Domain Names. The Complainant contends that the Respondent has registered the Domain Names with full knowledge of the Complainant’s trade mark and the Respondent could not have ignored the reputation of the Complainant’s trade mark CREDIT MUTUEL as it is well-known. The Complainant also alleges that the Respondent is using both Domain Names in bad faith. For the Domain Name The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to prevail the Complainant must substantiate, for each Domain Name, that the three elements of paragraph 4(a) of the Policy have been met, namely: (i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. In the case of default by a party, as is the case here, paragraph 14(b) of the Rules makes it clear that if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. In the absence of a Response from the Respondent whereby the Respondent did not object to any of the contentions from the Complainant, the Panel will have to base its decision on the basis of the Complaint and supporting Annexes. A. Identical or Confusingly Similar In light of the evidence provided by the Complainant, the Panel is satisfied that the Complainant has substantiated that it holds valid trade mark rights in CREDIT MUTUEL, which is reproduced in its entirety in both Domain Names. The second point that has to be considered is whether the Domain Names are identical or confusingly similar to the trade mark CREDIT MUTUEL in which the Complainant has rights. At the second level, both Domain Names incorporate the Complainant’s CREDIT MUTUEL trade mark in its entirety with the mere addition of, respectively, the two descriptive terms “id-” and “monespce-”. The Panel is satisfied that the term “id” is a short form of “identification”. The Panel is also satisfied that “monespce” is a misspelling of “mon espace”. Both generic terms added to the respective Domain Names do not prevent a finding of confusing similarity between the Complainant’s trade mark and the Domain Names. Then there is the addition of the generic Top-Level-Domain (“gTLD”) “.com”. As is generally accepted, the addition of a gTLD such as “.com” is merely a technical registration requirement and as such is typically disregarded under the first element confusing similarity test. Thus, the Panel finds that the Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out relevant circumstances that could demonstrate that a respondent has rights or legitimate interests in a domain name, namely: Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the respondent’s] rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to [the respondent] 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) ha[s] been commonly known by the domain name, even if [the respondent] ha[s] acquired no trade mark or service mark rights; or (iii) [the respondent] is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. Numerous previous panels have found under the UDRP that once the Complainant makes a prima facie showing that the registrant does not have rights or legitimate interests in the domain name, the burden of production shifts to the Respondent to rebut the showing by providing evidence of its rights or interests in the domain name. Having reviewed the Complainant’s assertions and evidence, the Panel is satisfied that the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the Domain Names. The Complainant has stated that it does not know the Respondent and that it has not licensed or otherwise authorised the Respondent to make any use of its trade mark CREDIT MUTUEL. There is no indication that the Respondent is commonly known by either of the Domain Names. The current absence of use of both Domain Names and the past use of the Domain Name Furthermore, the nature of the Domain Names, comprising the Complainant’s trade mark in its entirety in combination with additional terms, carries a high risk of implied affiliation. See section 2.5.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”). Thus, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out a number of relevant non-exhaustive circumstances, which can be deemed to constitute evidence of registration and use of a domain name in bad faith, namely: (i) circumstances indicating that [the respondent has] registered or acquired [a disputed] domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark 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 trade mark 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 [the respondent’s] website or other on-line 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. Given the circumstances described in the Complaint and the documentary evidence provided by the Complainant, the Panel finds that the Domain Names were registered in bad faith. The Domain Names reproduce the exact CREDIT MUTUEL trade mark of the Complainant and this cannot be a coincidence given the overall circumstances of the present case including (i) the renown of the Complainant’s CREDIT MUTUEL trade mark, as substantiated by the Complainant and acknowledged by several previous UDRP panels, (ii) the fact that the Respondent appears to be based in France where the Complainant is headquartered and where its renown is higher than anywhere else, (iii) the fact that the Domain Names were registered relatively recently and many years after the registration of the trade mark CREDIT MUTUEL and (iv) the targeted choice of generic terms added to the trade mark CREDIT MUTUEL in the Domain Names. Thus, the Panel finds that the Domain Names were registered in bad faith. As for use of the Domain Names in bad faith, given the circumstances described in the Complaint, the evidence provided by the Complainant and the brief verification carried out by the Panel of the website associated with the Domain Names, the Panel considers that the Domain Names are used in bad faith. Both Domain Names appear to be passively held. Passive use itself would not cure the Respondent’s bad faith given the overall circumstances here, specifically the renown of the Complainant’s CREDIT MUTUEL trade mark, especially in the country where the Respondent appears to be based and the Respondent’s default. Furthermore, the past use of one of the Domain Names, In addition, the DNS setup of the Domain Names (with active MX records), along with the composition of the Domain Names, lead the Panel to consider that the Domain Names could be used to deceive Internet users. In these circumstances, the Domain Names constitute a potential threat hanging over the head of the Complainant especially in light of the fact that fraudulent use of domain names and emails are particularly prevalent in relation to online banking. The fact that the Respondent chose not to object to the Complainant’s assertions can only reinforce the Panel’s view that the Domain Names are used in bad faith. Finally, this is further supported by the fact that the Respondent deliberately chose to conceal its identity by means of a privacy protection service, which, in the circumstances, is an additional indication of the Respondent’s bad faith and its intent to use the Domain Names in a way which may be abusive or otherwise detrimental to the Complainant and its rights. Thus, the Panel finds that the Domain Names have been registered and are also being used in bad faith. 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 Domain Names Vincent Denoyelle
Sole Panelist
Date: March 22, 2021
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