ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Mutuelle Nationale des Hospitaliers et des professionnels de la santé et du Social v. Domains by Proxy, LLC / Samar Jyoti Basumatary Case No. D2022-2718 1. The Parties The Complainant is Mutuelle Nationale des Hospitaliers et des professionnels de la santé et du Social, France, represented by ICOSA, France. The Respondent is Domains by Proxy, LLC, United States of America ("United States") / Samar Jyoti Basumatary, India. 2. The Domain Name and Registrar The disputed domain name (the "Disputed Domain Name") is registered with GoDaddy.com, LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 25, 2022. On July 25, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 25, 2022, 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 July 26, 2022, 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 on July 26, 2022. 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 of the Complaint, and the proceedings commenced on July 29, 2022. In accordance with the Rules, paragraph 5, the due date for Response was August 18, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 19, 2022. page 2 The Center appointed Nick J. Gardner as the sole panelist in this matter on August 23, 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 Background The Complainant is a French mutual insurance company, created in 1960. It specializes in insuring hospital staff. It has several word trademark registrations for the term MNH GROUP - see for example French trademark MNH GROUP No.4307386, filed on October 14, 2016. These trademarks are referred to in this decision as the "MNH GROUP trademarks". The Complainant promotes its business via websites linked to the domain names registered on May 6, 1999 and , registered on November 24, 2016. The Respondent registered the Disputed Domain Name on June 25, 2022. It resolves to a website which contains what appear to be "pay per click" ("PPC") links to third party websites. The Panel infers those links are automatically generated by an underlying algorithm. 5. Parties' Contentions A. Complainant The Complainant says that the Disputed Domain Name is similar to the MNH GROUP Trademark - the addition of the letter "s" does not distinguish it. The Complainant says that the Respondent has no rights or legitimate interests in the term "MNH GROUP" or MNHGROUPS". In consequence, the Complainant alleges that the Disputed Domain Name was registered and is being used in bad faith. The Complainant says the use of the Disputed Domain Name for a PPC website establishes such bad faith. It also says the Disputed Domain Name could be used for fraudulent purposes. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Preliminary Matters The Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to "employ reasonably available means calculated to achieve actual notice". Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent's failure to file any Response. While the Respondent's failure to file a Response does not automatically result in a decision in favour of the Complainant, the Panel may draw appropriate inferences from the Respondent's default (see, e.g., Verner Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909). The Panel also notes this is a case where one Respondent ("Domains By Proxy, LLC") appears to be a privacy or proxy service. page 3 The Panel in this case adopts the approach of most UDRP panels, as outlined in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") at section 4.4.5, as follows: "Panel discretion In all cases involving a privacy or proxy service and irrespective of the disclosure of any underlying registrant, the appointed panel retains discretion to determine the respondent against which the case should proceed. Depending on the facts and circumstances of a particular case, e.g., where a timely disclosure is made, and there is no indication of a relationship beyond the provision of privacy or proxy registration services, a panel may find it appropriate to apply its discretion to record only the underlying registrant as the named respondent. On the other hand, e.g., where there is no clear disclosure, or there is some indication that the privacy or proxy provider is somehow related to the underlying registrant or use of the particular domain name, a panel may find it appropriate to record both the privacy or proxy service and any nominally underlying registrant as the named respondent." In the present case, the Panel considers the substantive Respondent to be Samar Jyoti Basumatary and references to the Respondent are to that person. 6.2 Substantive Matters To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that: (i) the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; (iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has rights in the MNH GROUP Trademarks. The Panel finds the Disputed Domain Name is confusingly similar to this trademark. It is established that, where a mark is the distinctive part of a disputed domain name, the disputed domain name is considered to be confusingly similar to the registered mark (DHL Operations B.V. v. DHL Packers, WIPO Case No. D2008-1694). In the present case, the only differences between the trademark and the Disputed Domain Name are (i) the omission of a space, which is in any case cannot form part of a domain name for technical reasons and (ii) the addition of the letter "s" to forma plural. The Panel considers these differences to be trivial. It is also well established that the generic Top-Level Domain ("gTLD"), in this case ".com", does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429. Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name: (i) before any notice to the respondent of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods page 4 or services; or (ii) the respondent has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use MNH GROUP Trademarks. The Complainant has prior rights in the MNH GROUP Trademarks which precede the Respondent's acquisition of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455). The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the Disputed Domain Name. Accordingly, the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith Under paragraph 4(b) of the Policy a non-exhaustive list of factors evidencing registration and use in bad faith comprises: (i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or (ii) you have 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 you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location. The Panel concludes that (iv) applies as the Disputed Domain Name is likely to attract traffic because of confusion with the Complainant's mark, and the Respondent derives commercial gain as a result. The website linked to the Disputed Domain Name comprises a series of pay-per-click ("PPC") links to other thirdparty websites. The Panel infers that some consumers, once at this website will follow the provided links and "click through" to other sites which offer products some of which may compete with those of the Complainant. The Respondent presumably earns "click through" linking revenue as a result. The Panel infers the website is automatically generated. This does not however matter. It is well established that where a domain name is used to generate revenue in respect of "click through" traffic, and that traffic has been attracted because of the name's association with the Complainant, such use amounts to use in bad faith, see for example Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. page 5 D2006-1315; Owens Corning v. NA, WIPO Case No. D2007-1143; McDonald's Corporation v. ZusCom, WIPO Case No. D2007-1353; Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912; Rolex Watch U.S.A., Inc. v. Vadim Krivitsky, WIPO Case No. D2008-0396. See also WIPO Overview 3.0 section 3.5: "Can third-party generated material "automatically" appearing on the website associated with a domain name form a basis for finding bad faith? Particularly with respect to "automatically" generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests). Neither the fact that such links are generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith". Accordingly, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith and the third condition of paragraph 4(a) of the Policy has been fulfilled. In view of this finding the Panel does not need to decide as to the Complainant's further argument that the Disputed Domain Name may be used for fraudulent purposes. 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 be transferred to the Complainant. /Nick J. Gardner/ Nick J. Gardner Sole Panelist Date: September 6, 2022
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