The Complainant is Pomona, France, represented by Clairmont Novus Avocats, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Lamar Derick, France. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2021. On February 5, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 5, 2021, 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 February 8, 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 10, 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 February 24, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 16, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 17, 2021. The Center appointed Fabrice Bircker as the sole panelist in this matter on March 31, 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, Pomona, is a French leading company in the field of food products wholesaling. It is notably the owner of the following trademarks registrations: - POMONA International registration No. 352662 of December 20, 1968, in classes 29, 30, 31, and 39, and notably protected in Austria, Benelux, Italy, Monaco, Morocco, - POMONA, French trademark registration filed on July 13, 1988, registered under No. 1477470, regularly renewed since then, and covering products of classes 29, 30, 31, and 39, - GROUPE POMONA (and device), French trademark filed on March 30, 2012, registered under No. 3909797, and covering products of classes 16, 29, 30, 31, 35, and 39. The disputed domain name, It does not resolve to any active website. However, according to the record of the case, the disputed domain name has been used to send at least one email by which the Respondent, pretending being the Complainant’s “Director of Purchasing”, has contacted a supplier of the Complainant to request its catalogue in view of, then, asking for a quotation. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar In substance, the Complainant contends that the disputed domain name is confusingly similar to its trademarks because it reproduces them and because the differences between the signs are minimal and are about weakly distinctive elements. The Complainant also asserts that adding two or three letters to a trademark is not enough to change the overall impression and similarity between the signs in comparison and constitutes a clear case of typosquatting or fraud. Rights or Legitimate Interests The Complainant claims that the Respondent has no rights nor legitimate interests in respect of the disputed domain name because there is no relationship between the Complainant and the Respondent. The Complainant also states that it has not authorized of any manner the Respondent to use its trademarks, trade name, domain names and other distinctive signs constituted with the POMONA denomination. The Complainant adds that there is no credible evidence that the Respondent was commonly known under the disputed domain name or under the name POMONA to legitimize the registration of the disputed domain name. The Complainant also contends that the Respondent has no right nor legitimate interests arising from a bona fide offering of goods and services or from a legitimate noncommercial or faire use of the disputed domain name as it does not redirect the visitor toward a real website. Registered and Used in Bad Faith First, the Complainant contends that the disputed domain name does not redirect to any operated website that could suggest a bona fide registration. In addition, the Complainant contends that the disputed domain name was registered for the purposes of phishing, fraud, and/or unfair competition. In this respect, the Complainant puts forward that the Respondent has used the disputed domain name to send emails usurping the identity of the Complainant’s Chief Financial Officer. The Complainant adds that the disputed domain name is used to send fraudulent emails in order to obtain from its clients or suppliers undue payments corresponding to illegitimate orders or undue goods deliveries. The Complainant stresses that such a use of the disputed domain name seriously damages its image and reputation. The Complainant also indicates that it has sent a formal notice to the Respondent and to the Registrar, but it did not receive any response. At last, the Complainant contends that the Respondent usurps its postal address. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Procedural Issue: the criminal complaint filed by the Complainant The Complainant has indicated that a criminal complaint has been filed in France after domain names close to the disputed domain name have been used to send messages usurping its identity. According to paragraph 18(a) of the Rules “In the event of any legal proceedings initiated prior to or during an administrative proceeding in respect of a domain-name dispute that is the subject of the complaint, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision”. In the present case, the criminal complaint initiated by the Complainant does not concern the disputed domain name. As a consequence, the Panel finds that the filing of the criminal complaint does not prevent it to proceed to a decision in the present procedure. 6.2. Substantive Issues Paragraph 4(a) of the Policy provides that for obtaining the transfer or the cancellation of the disputed domain name, the Complainant must establish each of the following three elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and Besides, paragraph 15(a) of the Rules provides that “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraphs 10(b) and 10(d) of the Rules also provide that “[i]n all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case” and that “[t]he Panel shall determine the admissibility, relevance, materiality and weight of the evidence”. Besides, the Respondent’s failure to reply to the Complainant’s contentions does not automatically result in a decision in favor of the Complainant, although the Panel is entitled to draw appropriate inferences therefrom, in accordance with paragraph 14(b) of the Rules (see section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). Taking the foregoing provisions into consideration the Panel finds as follows. A. Identical or Confusingly Similar Pursuant to paragraph 4(a)(i) of the Policy, the Complainant must firstly establish rights in a trademark or service mark and secondly establish that the disputed domain name is identical or confusingly similar to its trademark. Annexes D, E, and F to the Complaint show trademarks registrations for POMONA and GROUPE POMONA in the name of the Complainant, namely those detailed in Section 4 above. These trademarks are identically reproduced in their entirety within the disputed domain name, Besides, the element “b2b” is the common abbreviation of the expression “business to business”, and “groupe” is a common dictionary term. As a consequence, the presence of these elements in the disputed domain name cannot dispel the confusing similarity of the disputed domain name to the Complainant’s marks. Indeed, there is a consensus view among UDRP panels that where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8; or Kabbage, Inc. v. Name Redacted,WIPO Case No. D2020-0140). As far as the generic Top-Level Domain (“gTLD”) “.com” is concerned, it consists of a standard registration requirement, and may therefore be disregarded when determining identity or confusing similarity under the first element. As a result of all the above, the Panel concludes that the requirements of paragraph 4(a)(i) of the Policy are satisfied. B. Rights or Legitimate Interests Under the Policy, the Complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (WIPO Overview 3.0, section 2.1; or for instance Applied Materials, Inc. v. John Warren,WIPO Case No. D2020-0950). In this case, the Respondent has not been authorized by the Complainant to register and to use the disputed domain name. In addition, there is nothing in the record of the case likely to indicate that the Respondent may genuinely be commonly known by the disputed domain name. Besides, the disputed domain name was used to send at least one email by which the Respondent has impersonated a manager of the Complainant to request from a supplier of the latter its catalogue in view of asking for a quotation afterwards. Obviously, such use of the disputed domain name, which is not refuted by the Respondent, does not amount to a legitimate noncommercial or fair use of the disputed domain name. On the contrary, such use is made with intent for commercial gain by misleadingly diverting the recipient of the fraudulent emails and may also tarnish the Complainant’s trademark. In this respect, panels have categorically held that the use of a domain name for illegal activity (such as phishing or impersonation) can never confer rights or legitimate interests on a respondent (see WIPO Overview 3.0, section 2.13; or Colas, Société Anonyme v. Concept Bale,WIPO Case No. D2020-2733). Taken all the above into consideration, the Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has had an opportunity to rebut the Complainant’s contentions but has not done so. Consequently, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name, and accordingly that the second element in paragraph 4(a) of the Policy is satisfied. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and is using the disputed domain name in bad faith. The circumstances deemed to be evidence of the registration and use of a domain name in bad faith listed at paragraph 4(b) of the Policy are non-exhaustive examples. In the present case, the Panel finds that the Respondent was necessarily aware of the Complainant’s rights at the time of the registration of the disputed domain name, since the very same day of its registration, it has been used to create an email address from which the Respondent has sent to a supplier of the Complainant, an email purporting to be a manager of the Complainant and containing the GROUPE POMONA brand (although with a typo). In addition, this email even mentioned the incorporation number of the Complainant and the postal address of its headquarters, what reflects a particular knowledge of the Complainant and also the will to target the latter. Besides, it is of constant case-law that the use of a domain name for illegitimate activity such as swindling or identity theft (in the present case, the Respondent has tried to mislead the recipient of the email sent through the disputed domain name, as to the identity of the sender of this email) are considered as manifest evidence of bad faith (see WIPO Overview 3.0, section 3.1.4, Colas, Société Anonyme v. Concept Bale,WIPO Case No. D2020-2733 or COLAS, Société Anonyme v. Elliott Murray,WIPO Case No. D2020-2417). As a conclusion of the above, the Panel finds that the disputed domain name was registered and has been used in bad faith, within the meaning of 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, Fabrice Bircker
(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.
Sole Panelist
Date: April 11, 2021
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