The Complainant is BPCE, France, represented by DBK - Société d’avocats, France.
The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf, Iceland / pascale kiss, cherhgi, 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 April 22, 2021. On April 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 22, 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 23, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on April 26, 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 April 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 17, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 18, 2021. The Center appointed Alexandre Nappey as the sole panelist in this matter on May 25, 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 BPCE, a French company that is the one of the largest banking groups in France and pursues a full range of banking, financing, and insurance activities, working through its two major Banque Populaire and Caisse d’Epargne cooperative banking networks and through its different subsidiaries. The Complainant is the owner of numerous trademarks registrations including or incorporating the terms CAISSE D’EPARGNE, among which: - CAISSE D’EPARGNE, French trademark No. 1658134, registered on April 26, 1991 in classes 9, 16, 28, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45; - CAISSE D’EPARGNE (word), International trademark No. 577157, registered on October 16, 1991 in classes 16, 35, 36; 38 and 41; - CAISSE D’EPARGNE (word), European Union trademark No. 637504, registered on September 24, 1997 in classes 9, 16, 35, 36, 38, 41 and 42; - LA CAISSE D'EPARGNE, French trademark No. 3155888, registered on March 27, 2002 in classes 36 and 41. The disputed domain name First, the Complainant indicates that the disputed domain name is confusingly similar with its prior trademarks CAISSE D’EPARGNE. The Complainant alleges that the disputed domain name contains its well-known trademark CAISSE D’EPARGNE in its entirety with addition of the French word “particulier” which does not prevent a finding of confusing similarity. On the contrary, the additional term refers to a category of services that the Complainant may offer to private individuals opposed to companies. - Rights of legitimate interests The Complainant claims that it has never authorized the Respondent to register and/or use any domain name incorporating its prior trademark. The Complainant has not granted any license, nor any authorization to use the trademarks, including as a domain name. Moreover, the Complainant alleges that the Respondent has not made a legitimate noncommercial or a fair use of the disputed domain name. This is shown by the Respondent’s website, which has been identified by an antivirus program as containing potentially dangerous content with potential attempt of phishing. Indeed, the Respondent is reproducing the Complainant’s trademarks in the disputed domain name to gain access to private information from the Complainant’s customers. - Bad faith Finally, the Complainant claims that the Respondent acted in bad faith when registering and using the disputed domain name. The Complainant alleges that the Complainant’s trademarks registrations pre-date the registration of the disputed domain name and its trademarks are well-known. So, the choice of the disputed domain name does not seem to be a mere coincidence, but on the contrary seems to have been done on purpose to generate a likelihood of confusion with its prior trademarks CAISSE D’EPARGNE. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Notwithstanding the default of the Respondent, it remains up to the Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark 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. However, under paragraph 14(b) of the Rules, where a Party does not comply with any provision of the Rules, the Panel “shall draw such inferences therefrom as it considers appropriate”. Having considered the Parties’ contentions, the Policy, the Rules, the Supplemental Rules and applicable law, the Panel’s findings on each of the above-mentioned elements are the following. A. Identical or Confusingly Similar The Panel is satisfied that the Complainant owns numerous trademark rights in the name CAISSE D’EPARGNE. This trademark is fully reproduced in the disputed domain name. The addition of the word “particulier” does not prevent a finding of confusing similarity. See for instance Confédération Nationale Du Crédit Mutuel v. Paula Lopez,WIPO Case No. D2019-0726. Accordingly, the Panel finds that the Complainant has succeeded in showing that the disputed domain name is identical or confusingly similar to its prior trademarks CAISSE D’EPARGNE in which the Complainant has rights. B. Rights or Legitimate Interests The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to the Respondent of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, even if the Respondent has acquired no trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Considering the difficulty to demonstrate a negative, prior UDRP panels generally find that if the complainant raises a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the policy and then the burden shifts to the respondent to demonstrate its rights or legitimate interests. See among numerous decisions Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110, and the section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”). Here, the Complainant has stated that it has not authorized, licensed, or consented to the Respondent any use of its CAISSE D’EPARGNE trademark. It results from the circumstances that the Respondent does not own any right in the trademark CAISSE D’EPARGNE and is not commonly known by the disputed domain name. Furthermore, the Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. In the light of what is stated above, the Panel finds that the Complainant has made an unrebutted prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. As the Respondent has not provided otherwise, the Panel finds from the available record that the second element of paragraph 4(a) of the Policy is fulfilled. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out examples of circumstances that will be considered by a panel to be evidence of bad faith registration and use of a domain name. It provides that: "For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that you have registered or you have acquired the 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location." Since CAISSE D’EPARGNE is a well-known trademark and there is no evidenced relationship between the Parties, the Panel finds it likely that the Respondent was aware of the Complainant’s trademark at the time it registered the disputed domain name. The disputed domain name does not resolve to an active website, however, Internet browsers warn of potential deceptive or phishing use when Internet users attempt to access the disputed domain name. Prior UDRP panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. See section 3.3 of the WIPO Overview 3.0. Noting the nature of the disputed domain name, comprising the Complainant’s well-known CAISSE D’EPARGNE trademark and the addition a the term associated with a type of client, the Panel finds it likely that the Respondent had the Complainant and CAISSE D’EPARGNE trademark in mind when registering the disputed domain name, and thus registered the disputed domain name in bad faith to take advantage of Complainant and its mark. Furthermore, the failure of the Respondent to submit a Response or to provide any evidence of actual or contemplated good faith use, the Respondent’s concealing of its identity behind a privacy service, and the implausibility of any good faith use to which the domain name may be put, affirm a finding of bad faith. The Panel finds that the above constitutes registration and use in bad faith pursuant to the third requirement 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 Alexandre Nappey
Sole Panelist
Date: June 7, 2021
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