The Complainant is Crédit Mutuel Arkea, France, represented by Nameshield, France.
The Respondent is 欧志婷 (Zhi Ting Ou), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 25, 2021. On October 25, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 26, 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 October 27, 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 in English on October 27, 2021.
On October 27, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On October 27, 2021, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceedings commenced on November 4, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 24, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 26, 2021.
The Center appointed Joseph Simone as the sole panelist in this matter on December 6, 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, Crédit Mutuel Arkea, is the cooperative and mutual bank insurance group in France, and covers all areas of banking, insurance and finance.
The Complainant has an extensive portfolio of trade marks incorporating the term “Arkea”, including the following:
- French Trade Mark Registration No. 96636222 ARKEA in Classes 35, 36, 42, and 45, registered on July 26, 1996; and
- French Trade Mark Registration No. 3888981 CRÉDIT MUTUEL ARKEA & Design in Class 36, registered on January 16, 2012.
The Complainant operates a website promoting its business linked to the domain name
The disputed domain name was registered on October 13, 2021. According to screenshots provided by the Complainant, at the time of filing the Complaint, the disputed domain name resolved to an inactive page. At the time of this Decision, the disputed domain name resolves to a page promoting the sale of various discounted Christmas gifts.
5. Parties’ Contentions A. ComplainantThe Complainant asserts that it has prior rights in the ARKEA trade mark and that it is a leading player in its field of business.
The Complainant further notes that the disputed domain name registered by the Respondent is identical or confusingly similar to the Complainant’s ARKEA trade mark, and the addition of the generic Top-Level Domain (“gTLD”) “.top” does not affect the analysis as to whether the disputed domain name is identical or confusingly similar to the Complainant’s mark.
The Complainant asserts that it has not authorized the Respondent to use the ARKEA mark, and there is no evidence to suggest that the Respondent has used, or has undertaken any preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
Finally, the Complainant asserts that there is no evidence suggesting that the Respondent has any connection to the ARKEA mark in any way, nor any plausible good faith reason for the Respondent to have registered the disputed domain name, given the circumstances.
The Complainant therefore concludes that the registration and any use of the disputed domain name must be in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Language of the ProceedingIn accordance with paragraph 11(a) of the Rules:
“[…] the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
In this case, the language of the Registration Agreement for the disputed domain name is Chinese. Hence, the default language of the proceeding should be Chinese.
However, the Complainant filed the Complaint in English, and requested that English be the language of the proceeding, asserting inter alia that:
- English language is the language most widely used in international relations and is one of the working languages of the Center;
- The disputed domain name is formed by words in Roman characters (ASCII) and not in Chinese script; and
- The Complainant would have to retain specialized translation services at a cost very likely to be higher than the overall cost of this proceeding, if the proceeding is to be conducted in Chinese.
The Respondent was notified in both Chinese and English of the language of the proceeding and the Complaint, but the Respondent did not comment on the language of the proceeding or submit any response.
Considering the circumstances in this case, the Panel has determined that the language of the proceeding shall be English, and the Panel has issued this decision in English. The Panel further finds that such determination would not cause any prejudice to either Party, and would ensure that the proceeding takes place with due expedition.
B. Identical or Confusingly SimilarThe Panel acknowledges that the Complainant has established rights in the ARKEA trade mark.
Disregarding the “.top” gTLD, the disputed domain name incorporates the ARKEA trade mark in its entirety.
Thus, the disputed domain name should be regarded as identical to the Complainant’s ARKEA trade mark.
The Panel therefore finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the ARKEA trade mark and in showing that the disputed domain name is identical or confusingly similar to its mark.
C. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, 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 producing evidence in support of its rights or legitimate interests in the domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
The Complainant asserts that it has not authorized the Respondent to use its trade mark and, and that there is no evidence to suggest that the Respondent has used, or has undertaken any preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Rather, the disputed domain name resolved to an inactive page at the time of filing the Complaint.
Thus, the Complainant has established its prima facie case with satisfactory evidence.
The Respondent did not file a Response rebutting the above and has therefore failed to assert factors or put forth evidence to establish that it enjoys rights or legitimate interests in the disputed domain name. As such, the Panel concludes that the Respondent has failed to rebut the Complainant’s prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name. The Panel further notes that the disputed domain name resolves to a website promoting the sale of various discounted Christmas gifts at the time of this Decision, and that none of the circumstances of paragraph 4(c) of the Policy are applicable in this case.
In addition, the Panel finds that the disputed domain name, being identical to the Complainant’s ARKEA trade mark, carries a high risk of implied affiliation with the Complainant. See WIPO Overview 3.0, section 2.5.1.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad FaithParagraph 4(b) of the Policy states that any of the following circumstances in particular but without limitation shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trade mark 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) circumstances indicating that the respondent registered the domain name to prevent the owner of the trade mark 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) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its 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 its website or location.
The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances in which bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,
WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trade mark of another party. See Match.com, LP v. Bill Zag and NWLAWS.ORG,
WIPO Case No. D2004-0230.
For the reasons discussed under this and the preceding heading, the Panel believes that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name.
When the Respondent registered the disputed domain name on October 13, 2021, the ARKEA trade mark was already widely known and directly associated with the Complainant’s activities. Given the extensive prior use and fame and distinctiveness of the ARKEA mark, in the Panel’s view, the Respondent should have been aware of the Complainant’s mark when registering the disputed domain name.
The Complainant’s registered trade mark rights in ARKEA for its products and services predate the registration date of the disputed domain name by almost three decades. A simple online search (e.g., via Google or Baidu) for the term “arkea” would have revealed that it is a brand enjoying a definite degree of fame worldwide. The Respondent has provided no explanation or evidence to justify its registration of the disputed domain name that is identical to the Complainant’s ARKEA trade mark. Given the foregoing, it would be unreasonable to conclude that the Respondent – at the time of the registration of the disputed domain name – was unaware of the Complainant’s trade mark, or that the Respondent’s adoption of the distinctive trade mark ARKEA was a mere coincidence.
The Panel is therefore of the view that the Respondent registered the disputed domain name with full knowledge of the Complainant’s trade mark rights.
At the time of filing the Complaint, the disputed domain name resolved to an inactive page. The Panel finds that the non-use of the disputed domain name in the circumstances of this case would not prevent a finding of bad faith under the doctrine of passive holding. See WIPO Overview 3.0, section 3.3. At the time of this Decision, the disputed domain name resolves to a website promoting the sale of various discounted Christmas gifts, which the panel regards as further evidence of bad faith.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
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
Joseph Simone
Sole Panelist
Date: December 20, 2021