The Complainant is CMA CGM, France, internally represented.
The Respondent is Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf, Iceland / Web Master237, Cameroon.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2021. On August 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 27, 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 August 31, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant did not replied to the Center’s communication.
The Center verified that 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 September 24, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 14, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2021.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on October 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 BackgroundThe Complainant is the fourth-largest shipping and transport company in the world, located in Marseille, France. The Complainant operates in more than 160 countries with more than 110000 employees. Its activities include freight, shipping, and logistics services.
The Complainant is the owner of the trademark CMA CGM, which is registered, inter alia, as an International trademark No. 1191384 on October 2, 2013, with effect in several countries all over the world.
The disputed domain name was registered on August 12, 2021. The disputed domain name resolved to a website which offered or purported to offer logistics services. At the time of the decision, it does not resolve to an active website.
5. Parties’ Contentions A. ComplainantThe disputed domain name includes the Complainant’s trademark in its entirety and is therefore confusingly similar to the Complainant’s trademark. The term “shipping” is merely descriptive for the activities of the Complainant and is therefore not sufficient to avoid confusion with the Complainant’s trademark.
The Respondent is not a licensee of or otherwise affiliated with the Complainant. The Complainant has not granted any authorization for the Respondent to make use of the Complainant’s trademark, in a domain name or otherwise. The Respondent is not making any legitimate non-commercial or fair use of the disputed domain name.
The disputed domain name resolves to a malicious website imitating the Complainant’s website with the Complainant’s logo. The Respondent has also created an email server “mail.cma-cgmshipping.com” from which fraudulent emails can be sent.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsIn order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint or not. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarParagraph 4(a)(i) of the Policy requires that the Complainant establishes that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
According to section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “The applicable Top Level Domain (“TLD”) 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”.
Furthermore, “where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements”. See section 1.8 of the WIPO Overview 3.0.
The disputed domain name is confusingly similar to the Complainant’s trademark, as the Complainant’s trademark is reproduced in its entirety, with the word “shipping” and a hyphen also included in the disputed domain name. The word “shipping” does not prevent a finding of confusing similarity between the Complainant’s trademark and the disputed domain name.
This means that the disputed domain name is confusingly similar with the Complainant’s trademark and hence the first element of the Policy has been fulfilled.
B. Rights or Legitimate InterestsParagraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain name.
It is widely accepted among UDRP panels that once a complainant has made a prima facie showing indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of proof shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant is deemed to have satisfied the second element of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270, and section 2.1 of the WIPO Overview 3.0.
The Complainant has credibly submitted that the Respondent is neither affiliated with the Complainant in any way nor has it been authorized by the Complainant to use and register the disputed domain name, that the Respondent has no prior rights or legitimate interests in the disputed domain name, and that the Respondent has not made and is not making a legitimate noncommercial or fair use of the disputed domain name and is not commonly known by the disputed domain name in accordance with paragraph 4(c)(ii) of the Policy.
Moreover, the Panel finds that the nature of the disputed domain name carries a high risk of implied affiliation with the Complainant’s trademark. See section 2.5.1 of the WIPO Overview 3.0.
Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Considering the Panel’s findings below, the Panel finds that there are no other circumstances that provide the Respondent with any rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that the second element of the Policy is fulfilled.
C. Registered and Used in Bad FaithParagraph 4(a)(iii) of the Policy requires that the Complainant establish that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that 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 [the respondent has] registered or has 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 [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 trademark 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 or 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 online 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.”
Considering that the Complainant’s trademark is included in its entirety in the disputed domain name with the descriptive term “shipping”, and that the disputed domain name resolves to a website which is clearly an imitation of the Complainant’s website, it is evident that the Respondent must have been aware of the Complainant’s trademark when registering the disputed domain name. Accordingly, the Panel finds that the disputed domain name was registered in bad faith.
The disputed domain name resolved to a website pretending to be the Complainant’s website or affiliated with it. The Respondent has clearly used the disputed domain name to create an image that it is the Complainant or affiliated with it.
It is therefore evident that the Respondent has registered and used the disputed domain name to intentionally attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation, or endorsement of the Respondent’s website.
Therefore, the Panel finds that the third element of the Policy is fulfilled.
7. DecisionFor 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
Tuukka Airaksinen
Sole Panelist
Date: November 9, 2021