The Complainant is Boursorama S.A., France, represented by Nameshield, France.
The Respondent is Li Xiansheng, Taiwan Province of China, 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 November 18, 2021. On November 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On November 19, 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 November 19, 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 November 19, 2021.
On November 19, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On November 19, 2021, the Complainant submitted 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 25, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 16, 2021.
The Center appointed Kar Liang Soh as the sole panelist in this matter on January 7, 2022. 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 was founded in 1995 and is a leading provider of online brokerage, financial information on the Internet, and online banking in European Union (“EU”) under the trademark BOURSORAMA (the “BOURSORAMA Trademark”). The Complainant has over 3 million customers in France.
The Complainant owns numerous trademark registrations for the BOURSORAMA Trademark, including the following:
Jurisdiction
Trade Mark
Trade Mark No.
Date of Registration
EU
BOURSORAMA
001758614
October 19, 2001
The Complainant is also the registrant of a number of domain names comprising the BOURSORAMA Trademark, including
Very little information about the Respondent is available beyond the information on the Who-Is record of the Disputed Domain Name and the Registrar verification pursuant to this proceeding. According to the Who-Is record, the Respondent is an individual based in Singapore but in the Taiwan Province of China. The address line appears to be a continuous unpronounceable string of 35 alphanumeric characters. The Respondent is required under paragraph 2 of article 1 of the Registration Agreement to provide correct details for use as Who-Is information.
The Disputed Domain Name
The Complainant contends that:
(i) The Disputed Domain Name is confusingly similar to the BOURSORAMA Trademark in which the Complainant has rights. The Disputed Domain Name is an obvious misspelling of the BOURSORAMA Trademark. The addition of the letter “p” is not sufficient to escape the finding that the Disputed Domain Name is confusingly similar to the BOURSORAMA Trademark. The addition of the generic Top-Level Domain (“gTLD”) “.com” does not change the overall impression of the designation as being connected to the BOURSORAMA Trademark;
(ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent is not known by the Complainant and is neither affiliated with nor authorized by the Complainant. The Complainant does not carry out any activity for, or business with, the Respondent. The Respondent has not been licensed or authorized to use the BOURSORAMA Trademark or apply for registration of the Disputed Domain Name. The Disputed Domain Name is being used to promote services that are unrelated to those provided by the Complainant; and
(iii) The Disputed Domain Name was registered and being used in bad faith. The Respondent had full knowledge of the BOURSORAMA Trademark at the time of registering the Disputed Domain Name. The misspelling in the Disputed Domain Name is intentionally designed to be confusingly similar to the BOURSORAMA Trademark. The Respondent is using the BOURSORAMA Trademark to promote services unrelated to the Disputed Domain Name. The Respondent is using the Disputed Domain Name intentionally to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the BOURSORAMA Trademark as to the source, sponsorship, affiliation, or endorsement of the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingSince the language of the Registration Agreement of the Disputed Domain Name is Chinese, the default language of the proceeding is Chinese. However, taking into account the following circumstances, the Panel exercises its discretion under paragraph 11 of the Rules to determine that English should be the language of the proceeding:
(i) The Complaint has already been submitted in English;
(ii) The Complainant has requested that English be the language of the proceeding;
(iii) The Complainant has indicated that the use of Chinese in this proceeding would impose a significant administrative and cost burden on the Complainant; and
(iv) The Respondent has neither contested the Complainant’s language request nor chosen to participate in the proceeding.
To succeed in this proceeding, the Complainant must establish the three limbs of paragraph 4(a) of the Policy on the facts:
(i) The Disputed Doman name is identical or confusingly similar to a trademark 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 was registered and is being used in bad faith.
The Panel is satisfied that the Complainant owns rights in the BOURSORAMA Trademark by virtue of its trademark registration. The BOURSORAMA Trademark is incorporated in the Disputed Domain Name in its entirety. The only difference between the Disputed Domain Name and the BOURSORAMA Trademark is the addition of the letter “p” within the Disputed Domain Name.
Various past UDRP panels have held that slight spelling variations do not prevent a disputed domain name from being confusing similar to the Complainant’s trademark (see section 1.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). Past UDRP panels have also held that the addition of a gTLD suffix such as “.com” is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test (see WIPO Overview 3.0, section 1.11).
The Panel is of the view that the addition of the letter “p” in the Disputed Domain Name does not prevent the BOURSORAMA Trademark from being easily recognizable in the Disputed Domain Name. As such, the Panel holds that the Disputed Domain Name is confusingly similar to the BOURSORAMA Trademark and the first limb of paragraph 4(a) of the Policy is established.
B. Rights or Legitimate InterestsThe Complainant has confirmed that the Respondent is not affiliated, authorized or licensed by the Complainant to use the BOURSORAMA Trademark or apply for registration of the Disputed Domain Name. The Complainant has denied any business activity with the Respondent. There is also no evidence before the Panel to suggest that the Respondent is commonly known by the Disputed Domain Name. The use of the Disputed Domain Name to feature industrial automation content does not offer any suggestion that the Respondent is making a bona fide noncommercial use of the Disputed Domain Name. The use of the Disputed Domain Name to feature pornographic content puts the issue to rest that the Respondent could be making bona fide noncommercial use of the Disputed Domain Name. The Panel is satisfied that the Complainant has shown a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name. In the absence of any response by the Respondent, the prima facie case is not rebutted. The second limb of paragraph 4(a) of the Policy is accordingly established.
C. Registered and Used in Bad FaithParagraph 4(b)(iv) of the Policy sets out a common example of bad faith registration and use of a domain name, it states:
“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.”
The term “boursorama” appears to be a meaningless invented word, a word which the Complainant holds trademark rights in. Therefore, it is an inconceivable coincidence that the letter combination in the Disputed Domain Name so closely resembles this meaningless invented word. The reasonable conclusion is that the Respondent must have been aware the BOURSORAMA Trademark at the time of registering the Disputed Domain Name. Even though the Disputed Domain Name resolved to a website, the website does not provide or lead to any content which remotely suggests any connection to the Disputed Domain Name. On the other hand, the Disputed Domain Name directed to content (in particular, pornographic content) which must have been intended for commercial gain.
The Panel has no doubt that the Disputed Domain Name was registered to intentionally attract Internet users to the content associated with the Disputed Domain Name for commercial gain by creating confusion with the BOURSORAMA Trademark as to the source, sponsorship, affiliation, or endorsement of such content. These circumstances are essentially the circumstances of bad faith registration and use outlined in paragraph 4(b)(iv) of the Policy.
Further, the Panel notes that the Respondent has failed to discharge his obligation to provide correct details for use in the Who-Is information, namely, stating his location as being in Singapore, Taiwan Province of China, China. The Panel takes official notice of the obvious known fact that Singapore and China are independent sovereign nations, neither of which is a territory of the other. The unpronounceable string of characters in the address line serves to seal the Panel’s view that the Respondent had no intention to provide valid contact details. Such deplorable behaviour further corroborates the Panel’s finding that the Disputed Domain Name was registered and is being used in of bad faith.
In the circumstances, the Panel holds that the Complainant has established that the Respondent has registered and used the Disputed Domain Name in bad faith, and the third limb of paragraph 4(a) of the Policy is established.
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,
Kar Liang Soh
Sole Panelist
Date: January 24, 2022