WIPO Domain Name Decision D2021-0977 for creditmutuel-app.xyz

WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Confederation Nationale du Credit Mutuel v. WhoisGuard Protected, WhoisGuard, Inc. / Jean Duca Case No. D2021-0977 1. The Parties

The Complainant is Confederation Nationale du Credit Mutuel, France, represented by MEYER & Partenaires, France.

The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Jean Duca, France. 2. The Domain Name and Registrar

The disputed domain name is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2021. On March 31, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name(s). On April 2, 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 April 6, 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 amendment to the Complaint on April 12, 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 April 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 3, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default May 4, 2021.

The Center sent an email communication to the Complainant on May 10, 2021 regarding the Notification of Complaint and Commencement of Administrative Proceeding. Due to an administrative oversight, it appears that the Center’s Notification email were not copied to the Respondent at:
[…]@withheldforprivacy.com.

The Center granted the Respondent a five-day period in which to indicate whether it wishes to participate to this proceeding. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default May 17, 2021

The Center appointed Isabelle Leroux as the sole panelist in this matter on May 26, 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 French association registered under the law of the July 1st, 1901, acting as the political and central body for the banking group CREDIT MUTUEL in France and is one of the largest French banking and insurance services groups.

The Complainant owns a portfolio of registered trademarks consisting of the sign “CREDIT MUTUEL”, including, inter alia, the following registrations:

- French combined trademark CREDIT MUTUEL, No. 1475940, registered in July 8, 1988 and duly renewed for services in Classes 35 and 36;

- French combined trademark CREDIT MUTUEL, No. 1646012 of November 20, 1990 and duly renewed, registered for goods and services in Classes 16, 35, 36, 38 and 41;

- European Union figurative trademark CREDIT MUTUEL, No. 016130403 registered in June 1, 2017, for goods and services in Classes 7, 9, 16, 35, 36, 38, 41 and 45;

- European Union figurative trademark CREDIT MUTUEL LA BANQUE A QUI PARLER No. 5146162 registered in August 23, 2007 for goods and services in Classes 9, 16, 35, 36, 38, 41 and 45;

- European Union word trademark CREDIT MUTUEL, n° 18130616 registered in September 2, 2020, for goods and services in Classes 7, 9, 16, 35, 36, 38, 41 and 45;

- European Union figurative trademark CREDIT MUTUEL, n° 18130619 registered onMay 22, 2021, for goods and services in Classes 7, 9, 16, 35, 36, 38, 41 and 45 (together the “Trademarks”).

The Complainant and its IT-dedicated subsidiary EURO INFORMATION are respectively the holder of many domain names including, inter alia, the following domain names:

- registered on October 28, 1995 and duly renewed;
- registered on June 3, 2002 and duly renewed;
- registered on August 10, 1995 and duly renewed;
- registered on September 13, 2001 and duly renewed;
- registered on October 3, 1996 and duly renewed.

The disputed domain name was registered on February 6, 2021 under anonymity by WhoisGuard Protected located in Panama.

According to the information provided by the Registrar following to the request for verification of the Center, the real registrant is an individual whose registered address does not seem to exist, which is further supported by the evidence provided by the Complainant.

The disputed domain name used to resolve to pay-per-click (“PPC”) parking page containing links offering connection to Complainant’s competitors’ websites. It currently resolves to an inactive website. 5. Parties’ Contentions A. Complainant

(i) The Complainant contends that the disputed domain name is confusingly similar to the Trademarks. Firstly, it contends that a Top-Level-Domain (“TLD”) such as “.xyz” is not relevant and shall not be taken into account when considering the similarity between the disputed domain name and the Trademarks.

The Complainant further contends that the Trademarks are identical to the disputed domain name since it consists of the trademark CREDIT MUTUEL as the distinctive and dominant element, followed by the suffix “app”, which can be easily understood as designating “application” used on IT devices, with the presence of a hyphen in the middle, which has to be ignored.

The Complainant argues that the addition of the word “app” only increases the risk of confusion by referring to applications or “app” offered by banking businesses to their customers, which may make Internet user believe that the disputed domain name is associated with the Complainant, especially since the Complainant also offers a mobile phone application.

(ii) The Complainant indicates that it has never given any license or authorization to the Respondent to register the disputed domain name.

In any case, the Registrant who appears to be an individual located in Paris, France, is not commonly known under the disputed domain name and there is no business relationship of any kind between the Complainant and the Respondent.

The Complainant adds that the disputed domain name used to resolve to a PPC parking page containing links offering connection to Complainant’s competitors’ website. Therefore, the Respondent does not make any bona fide use nor does it have any rights or legitimate interests in respect of the disputed domain name.

(iii) The Complainant finally contends that the disputed domain name was registered in bad faith. The registration was made in bad faith since the choice of the term “CREDIT MUTUEL” for the disputed domain name was not coincidental but it was deliberate, given the well-known character of the Trademarks.

The Respondent who seems to be an individual in France could not have ignored the reputation of the Complainant, its Trademarks and services towards its clients and general Internet users regarding its app in France.

It further contends that the postal address provided by the Respondent for the registration is unknown in Paris according to Google Map Search, which demonstrates the fraudulent intention of the Respondent and proves a bad faith registration.

Finally, the Complainant points out that the Respondent was using the disputed domain name only for commercial gain by obtaining click-through commissions through the PPC links. The fact that some of the links were redirecting users to websites offering Complainant’s competitors’ products further demonstrates a fraudulent behavior, which disrupts Complainant’s business. Such use shall be considered as bad faith use.

(iv) The Complainant therefore requests that the disputed domain name be transferred to the Complainant. B. Respondent

The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings

Paragraph 4(a) of the Policy requires the Complainant to prove each of the following elements in order to obtain relief:

(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(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.

These elements will be examined in turn below. A. Identical or Confusingly Similar

The disputed domain name contains in its entirety the CREDIT MUTUEL Trademarks, which is typically considered sufficient to satisfy the requirements of the first element.

The addition of the descriptive term “app” associated with the Trademarks does not avoid a finding of confusing similarity. The Panel notes that this term refers to a mobile application in general and through which the Complainant offers services to its clients.

Furthermore, the gTLD does not affect the identity between the disputed domain names and the Trademarks. Indeed, according to well-established consensus among UDRP panels, the addition of gTLD extensions, such as “.xyz”, is not to be taken into consideration when examining the identity or confusing similarity between a complainant’s trademarks and the disputed domain names. (See Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd.,WIPO Case No. D2006-0762; Fédération Française de Tennis v. Aditya Soni,WIPO Case No. D2016-1929).

Consequently, the Panel finds that the disputed domain name to be confusingly similar to the Trademarks. The first element of the paragraph 4(a) of the Policy is thus fulfilled. B. Rights or Legitimate Interests

Numerous UDRP panels have found that, even though the Complainant bears the general burden of proof under paragraph 4(a)(ii) of the UDRP, the burden of production shifts to the Respondent once the Complainant makes a prima facie showing that the Respondent lacks rights or legitimate interests. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.

Hence, after the Complainant has made a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name, it will be deemed to have satisfied paragraph 4(a)(ii) of the UDRP when the Respondent fails to submit a response.

In this case, the Complainant brings forward the following elements:

- It has no relationship whatsoever with the Respondent;
- There is no indication that the Respondent is known under the disputed domain name;
- No license or authorization has been granted by the Complainant to the Respondent.

In addition, the Complainant has provided evidence on the fact that the website to which the disputed domain name is used to resolve to PPC parking page containing links offering connection to Complainant’s competitors’ website.

Therefore, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.

The Respondent has not proved otherwise.

Given these circumstances, the Panel finds that the second element of the Policy has been satisfied. C. Registered and Used in Bad Faith

The Trademarks have been recognized as well known by previous UDRP panels. Accordingly, the Panel considers that the Respondent could not plausibly ignore the existence of the Complainant’s Trademarks at the time the disputed domain name was registered and finds that the registration was made in bad faith. See Confederation Nationale du Crédit Mutuel v. DomainsByProxy/Gomes Paulo,WIPO Case No. DWS2008-0001; Confederation Nationale du Credit Mutuel v. Philippe Marie,WIPO Case No. D2010-1513; Confédération Nationale du Crédit Mutuel v. Whoisguard Protected, Whoisguard, Inc. / Isabelle Garcia, Credit Mutuel Fiable,WIPO Case No. D2017-0214.

Furthermore, the Panel finds that the Respondent’s efforts to conceal its identity through the use of a WhoIs proxy service with an address located in Panama can be construed as further evidence that the disputed domain name was registered in bad faith. See TTT Moneycorp Limited. v. Diverse Communications,WIPO Case No. D2001-0725.

In addition, the Complainant has provided evidence that the Respondent’s postal address disclosed by the Registrar does not exist, which further demonstrates the bad faith of the Respondent at the time of the registration.

As to the use of the disputed domain name in bad faith, the Complainant has provided evidence that the disputed domain name used to resolve to a parking page with numerous PPC, some of which were expressly referring to Complainant’s competitors’ products or services.

Thus, it is demonstrated that the disputed domain name has been used for competing commercial PPC links in an intentional attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with Complainant’s Trademarks and its goods and services as to the source, sponsorship, and affiliation of the website, to which the disputed domain name points.

The use made by the Respondent on the disputed domain name shall be considered as a type of disruptive conduct that constitutes bad faith.

The Panel finds that Complainant has established the elements of bad faith in paragraph 4(b)(iv) of the Policy, where Respondent failed to submit a reply to Complainant’s contentions. Therefore, the requirements of paragraph 4(a)(iii) of the Policy are satisfied. 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 be transferred to the Complainant.

Isabelle Leroux
Sole Panelist
Date: June 9, 2021

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