The Complainant is Boursorama S.A., France, represented by Nameshield, France.
The Respondent is 徐海民 (Xu Hai Min), 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 22, 2021. On November 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 24, 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 26, 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 26, 2021.
On November 26, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On November 26, 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 December 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 27, 2021.
The Center appointed Joseph Simone 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, Boursorama S.A., is a leading French company in the fields of online brokerage, online financial information, and online banking.
The Complainant has several trade marks consisting of the name “Boursoroma”, including the following:
- European Union Trade Mark Registration for BOURSOROMA, No. 001758614, in Classes 9, 16, 35, 36, 38, 41, and 42, registered on October 19, 2001, and is valid at the time of this Decision;
- French Trade Mark Registration for BOURSOROMA, No. 98723359, in Classes 9, 16, 35, 36, 38, and 42, registered on March 13, 1998, and is valid at the time of this Decision.
The Complainant also owns the domain name
The disputed domain name was registered on April 12, 2014. According to the screenshot provided by the Complainant, at the time of filing the Complaint, the disputed domain name resolved to a parking page with commercial links. At the time of this Decision, the disputed domain name still resolves to the same parking page.
5. Parties’ Contentions A. ComplainantThe Complainant asserts that it has prior rights in the BOURSORAMA trade mark and that it is a leader in providing online brokerage, financial information, and banking services. It also claims that its domain name
The Complainant further asserts that the disputed domain name is nearly identical or confusingly similar to the Complainant’s BOURSORAMA mark, and the addition of the generic Top-Level Domain (“gTLD”) “.com” does not affect the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s mark.
The Complainant also asserts that it has not authorized the Respondent to use the BOURSORAMA mark and there is no evidence to suggest that the Respondent has any connection to the BOURSORAMA mark in any way. The Complainant further asserts that there is no evidence that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
The Complainant also notes that its BOURSORAMA mark is well known and distinctive. It is therefore reasonable to infer that the Respondent registered the disputed domain name with full knowledge of the Complainant’s BOURSORAMA mark.
The Complainant further alleges that by resolving the disputed domain name to a parking website with commercial links, the Respondent is attempting to attract Internet users for commercial purposes, which is evidence of bad faith. The Complainant therefore concludes that the Respondent has registered and is using the disputed domain name 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.
The Complainant has requested that English be the language of the proceeding, for the following reasons:
- The English language is the language most widely used in international relations;
- The disputed domain name is formed by words in Roman characters (ASCII) and not in Chinese script;
- If the proceeding were to be conducted in Chinese, the Complainant would have to retain specialized translation services at a cost very likely to be higher than the overall cost of the proceeding. The use of Chinese in this case would therefore impose a burden on the Complainant which must be deemed significant in view of the low cost of the proceeding.
The Respondent was notified in both Chinese and English of the language of the proceeding and the Complaint, but 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 provided sufficient evidence to prove that prior to the registration of the disputed domain name, the Complainant has already established valid rights in the BOURSORAMA trade mark through use and registration thereof.
Disregarding the gTLD “.com”, the disputed domain name differs from the Complainant’s BOURSORAMA mark by only one letter. The Panel concludes that the deletion of the letter “r” is an obvious misspelling of the Complainant’s BOURSORAMA mark. According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9, “[a] domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”.
The Panel also finds that the addition of the gTLD “.com” in this case does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s BOURSORAMA mark. See WIPO Overview 3.0, section 1.11.
The Panel therefore concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark and that the requirement of paragraph 4(a)(i) of the Policy is satisfied.
C. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, the complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed 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 disputed 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 3.0, section 2.1.
The Complainant asserts that it has not authorized the Respondent to use its trade mark and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
Thus, the Complainant has established its prima facie case with satisfactory evidence.
The Respondent did not file a response and has therefore failed to assert factors or put forth evidence to establish that he enjoys rights or legitimate interests in the disputed domain name. In addition, the disputed domain name resolves to a parking website with commercial links. 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, and that none of the circumstances of paragraph 4(c) of the Policy is applicable in this case.
The Panel therefore concludes 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 disputed domain name consists of a misspelling of the Complainant’s BOURSORAMA mark. When the Respondent registered the disputed domain names on April 12, 2014, the Complainant’s BOURSORAMA mark was already widely known and directly associated with the Complainant’s activities. In fact, a simple online search of the words “bousorama” or “boursorama” shows that the results are linked to the Complainant and its activities. It is implausible that the Respondent was unaware of the Complainant’s BOURSORAMA mark when he registered the disputed domain name.
As to the use of the disputed domain name, the Respondent is using the disputed domain name as a parking website with commercial links. Such use, presumably profiting from the misdirection of Internet users to the Respondent’s website, cannot constitute bona fide use, and falls into paragraph 4(b)(iv) of the Policy.
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: January 17, 2022