Complainant is Boursorama S.A., France, represented by Nameshield, France.
Respondent is Liseno Goubin, ASPOPOWNA, 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 28, 2021. On April 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 29, 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 Complainant on April 29, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 29, 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 Respondent of the Complaint, and the proceedings commenced on April 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 20, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 21, 2021. The Center appointed Nathalie, Dreyfus 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. On June 4, 2021, the Panel issued a Procedural Administrative Order n°1, to which Complainant replied on the same day. Respondent did not submit any comments. 4. Factual Background Complainant is Boursorama S.A., France, a company providing online brokerage, Internet financial information and online banking services, under the trademark BOURSORAMA. Complainant owns trademark rights in the BOURSORAMA sign, and notably through the following registration: - European Union trade mark registration BOURSORAMA No. 1758614, registered on October 19, 2001, for goods and services in classes 9, 16, 35, 36, 38, 41 and 42, duly renewed since then. Complainant currently operates its activities through several domain names, including Respondent is Liseno Goubin, ASPOPOWNA. Respondent registered the disputed domain name Complainant argues that the disputed domain name is confusingly similar to its well-known BOURSORAMA trademark and to Complainant’s domain names. Complainant further asserts that the disputed domain name contains an obvious misspelling of its BOURSORAMA trademark that is not sufficient to avoid any likelihood of confusion. It considers that this is a clear case of typosquatting. Complainant alleges that the addition of the generic Top-Level Domain (“gTLD”) “.com” does not change the overall impression of the designations as being connected to the BOURSORAMA trademark. Thus, the addition of the gTLD “.com” does not prevent any likelihood of confusion between the disputed domain name and Complainant’s trademark. Then, Complainant claims that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant first recalls that it must make a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, and then the burden of proof shifts to Respondent who has to demonstrate its rights or legitimate interests in it. Based on the information of the WhoIs database, Complainant argues that Respondent was not commonly known under the disputed domain name. Complainant asserts that Respondent is not related in any way to Complainant’s business. In particular, Complainant claims that it has not granted any license or authorization to Respondent to make any use, or apply for registration of the disputed domain name. Besides, Complainant affirms that the disputed domain name is a typosquatted version of the BOURSORAMA trademark and redirects to a website that was blocked by Complainant’s service provider, which is further evidence that Respondent lacks rights or legitimate interests in the disputed domain name. Finally, Complainant argues that the disputed domain name was registered and is used in bad faith. Complainant states that its BOURSORAMA trademark is well-known and that it is difficult to imagine that Respondent could have ignored its rights on the BOURSORAMA sign at the time it registered the disputed domain name. Moreover, the disputed domain name is confusingly similar to Complainant’s trademark BOURSORAMA. Complainant states that the addition or deletion of letters is not sufficient to escape the finding that the disputed domain name is confusingly similar the latter trademark. B. Respondent Respondent did not reply to Complainant’s contentions, and is therefore in default. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that to obtain the transfer of the disputed domain name, Complainant must prove that each of the following three elements are present: (i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) 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. A. Identical or Confusingly Similar Complainant has shown rights in the BOURSORAMA trademark. Complainant asserts that the disputed domain name Previous UDRP panels have indeed established that “a domain name consisting of a common, obvious, or intentional misspelling of a trademark, containing sufficiently recognizable aspects of that mark, is considered confusingly similar to the relevant mark for the purposes of the first element, and employing a misspelling in this way normally signals an intention to confuse users seeking or expecting the complainant” (See Pinsent Masons LLP v. Contact Privacy Inc. Customer 1246646498 / Barry Quinn,WIPO Case No. D2020-0956 and WIPO Overview of WIPO Panel Views on Selected UDRIP Questions, Third Edition, (“WIPO Overview 3.0”), sections 1.7 and 1.9). In the present case, the disputed domain name contains a misspelling of Complainant’s trademark while retaining a phonetic similarity to Complainant’s trademark. The disputed domain name Complainant also states that the addition of the gTLD “.com” does not prevent a finding of confusion similarity between the disputed domain name and the BOURSORAMA trademark. Previous UDRP panels have continuously held that a gTLD suffix does not prevent a finding of confusing similarity. “The applicable Top-Level Domain in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” WIPO Overview 3.0, section 1.11. See also Research In Motion Limited v. One Star Global LLC,WIPO Case No. D2008-1752; and EmblemHealth Services Company, LLC v. Christian Clotter, Christian clotter,WIPO Case No. D2020-0951). Consequently, the Panel considers that the gTLD should be disregarded in the identity or confusing similarity test. Therefore, the Panel finds that the disputed domain name Complainant has therefore satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests A complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such a prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview 3.0, section 2.1”.(See Association des Centres Distributeurs E. Leclerc - A.C.D. Lec v. Domain Administrator, See PrivacyGuardian.org / Ghuilo Dhulio,WIPO Case No. D2020-2200). Complainant states that Respondent is not identified in the WhoIs database as the disputed domain name and is thus not commonly known under the disputed domain name. Previous UDRP panels have indeed relied upon the information available in the WhoIs database to conclude that Respondent was not commonly known under the disputed domain name: “Complainant provides the Panel with the WhoIs information, which lists “Fundacion Private Whois, Domain Administrator, Panama” as the registrant of disputed domain name, and avers that the WhoIs information contains no evidence that Respondent is commonly known by the disputed domain name. In similar situations, past UDRP panels have found that a respondent is not commonly known by the disputed domain name based on the WhoIs information and the evidence in the record”. (See LK International AG v. Fundacion Private Whois,WIPO Case No. D2013-0135). Based on the available WhoIs details, the Panel finds that Respondent is not commonly known under the disputed domain name. Complainant contends that Respondent is not related in any way to Complainant’s business. Complainant further asserts that it has granted no license or authorization to Respondent to make any use, or apply for registration of the disputed domain name. This is generally considered as evidence that Respondent lacks rights or legitimate interests in the disputed domain name: “The Panel finds that there is no evidence of the existence of any of those circumstances to demonstrate the rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Complainant’s trademark in the disputed domain name. Furthermore, the Respondent is not known by the disputed domain name”. (See Lonza Ltd. v. Shabnam Golbouy Daghdari,WIPO Case No. DIR2020-0015). On the basis of the information given by Complainant and in the absence of a response provided by Respondent, the Panel considers that Respondent was not related in any way to Complainant. Complainant argues that the disputed domain name is typosquatted version of its trademark. Previous UDRP panels have found that “typosquatting is not an activity of a kind to vest rights or legitimate interests in a registrant.” (See ZB, N.A., A National Banking Association, dba Zions First National Bak v. Domain Admin, Whois Privacy Corp,WIPO Case No. D2016-0999). In addition, Complainant states that the disputed domain name links to a page blocked by service provider. Previous UDRP panels have admitted several times that “use of a domain name for illegal activity—including the impersonation of the complainant, email phishing schemes, and other types of fraud—can never confer rights or legitimate interests on a respondent” (See BASF SE v. Prakash Yadav,WIPO Case No. D2021-0108). As a result, the Panel finds that Complainant has made a prima facie showing of Respondent’s lack of rights to or legitimate interests in the disputed domain name. Therefore, the Panel finds that Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Complainant argues that the disputed domain name is confusingly similar to its distinctive and well-known trademark BOURSORAMA. Thus, it is difficult to imagine that Respondent could have ignored the trademark BOURSORAMA at the time it applied for the disputed domain name Previous UDRP panels have found that such situation show that “the Respondent knew or should have known of the Complainant’s trademark and deliberately registered the confusingly similar disputed domain name” (see Carrefour SA v. WhoisGuard, Inc. / Jes Madsen,WIPO Case No. D2020-0902 and WIPO Overview 3.0, section 3.2.2). As a result, the Panel finds that the disputed domain name was registered in bad faith. Complainant further argues that the addition of letters is not sufficient to escape the finding that the disputed domain name is confusingly similar to its trademark, and that the misspelling was intentionally designed to be confusingly similar the latter trademark. Previous UDRP panels have decided that “Typosquatting itself is evidence of relevant bad faith registration and use”. (See Redbox Automated Retail, LLC d/b/a Redbox v. Milen Radumilo,WIPO Case No. D2019-1600). The Panel further notes that the disputed domain name does not resolve to an active page. 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. Therefore, the Panel finds that the disputed domain name is being used in bad faith. In light of the above, the Panel finds that Complainant has satisfied 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 Nathalie Dreyfus
Sole Panelist
Date: June 8, 2021
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