The Complainant is Crédit Agricole Leasing & Factoring S.A., France, represented by Nameshield, France.
The Respondent is WhoisGuard, Inc., Panama / hbt hbt, hnt ltd, Germany. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2020. On September 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 11, 2020, 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 September 14, 2020 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 September 15, 2020. 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 September 25, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 15, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 16, 2020. The Center appointed Christian Gassauer-Fleissner as the sole panelist in this matter on October 30, 2020. 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 Crédit Agricole Leasing & Factoring S.A. is involved in leasing contracts, factoring and financing of renewable energies in France and Europe. It employs 2,392 people and has around 215,000 customers. The Complainant is the owner of the European Union trademark registration No 005133327 EUROFACTOR filed on June 13, 2006 and registered September 6, 2007, in classes 35 and 36 of the Nice Classification. The disputed domain name The Complainant asserts that the disputed domain name is identical to its EUROFACTOR trademark. The Complainant further asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since the Respondent is not commonly known by the disputed domain name and the Respondent is not licensed, authorized or permitted to register domain names incorporating the Complainant’s trademarks. The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith in view of that the disputed domain name is clearly designed to attract Internet user looking for the mark of the Complaint by using a domain name containing a sign identical to the Complainant’s trademarks. The Complainant requests transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires that the Panel’s decision be made “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. It has been a consensus view in previous UDRP decisions that a respondent’s default (i.e., failure to submit a response) would not by itself mean that the Complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true (See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). A complainant must evidence each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that; (i) the disputed domain name is identical 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; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain name is identical to the Complainant’s EUROFACTOR mark, in which the Complainant has established rights through registration. The disputed domain name consists of the EUROFACTOR mark and the country code Top-Level Domain (“ccTLD”) “.me”. ccTLDs are generally disregarded when evaluating the identity or similarity of the Complainant’s mark to the disputed domain name under paragraph 4(a)(i) of the Policy, irrespective of any ordinary meaning that might be ascribed to the ccTLD (see section 1.11 of the WIPO Overview 3.0). Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (see section 2.1 of the WIPO Overview 3.0). Based on the evidence provided by the Complainant, the Panel concludes that the Respondent was aware of the Complainant and had the Complainant’s EUROFACTOR mark in mind when registering the disputed domain name. The disputed domain name is identical to the Complainant’s distinctive EUROFACTOR mark, therefore most likely aims to attract Internet users searching for the Complainant’s domain name. The disputed domain name hosts a parked page comprising pay-per-click links, which as numerous previous UDRP panels have found, does not represent a bona fide offering where such links capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users, which is the case here (see section 2.9 of the WIPO Overview 3.0). The Complainant therefore made a prima facie case that the Respondent lacks rights or legitimate interests to which the Respondent failed to respond. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel notes that the Complainant’s services are prominently displayed on the Internet. The fact that the disputed domain name is identical to the Complainant’s EUROFACTOR mark and was registered several years after the registration of the Complainant’s trademark demonstrates in view of the Panel that the Respondent knew of the Complainant’s EUROFACTOR trademark when registering the disputed domain name in 2020. The current use of the disputed domain name as a parked page comprising automatically generated pay-per-click links, which redirect Internet users to commercial websites further proves to the Panel that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark. Previous UDRP panels have found that employing an identical or confusingly similar domain name in this way generally supports a finding of bad faith (see Merck Sharp & Dohme Corp. v. Domain Administrator, PrivacyGuardian.org / George Ring, DN Capital Inc.,WIPO Case No. D2017-0302; Serta Inc. v. Charles Dawson,WIPO Case No. D2008-1474; Asian World of Martial Arts Inc. v. Texas International Property Associates,WIPO Case No. D2007-1415). For these reasons, the Panel considers that the Respondent’s conduct constitutes bad faith registration and use of the disputed domain name. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 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, Christian Gassauer-Fleissner
Sole Panelist
Date: November 6, 2020
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