WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Confédération Nationale Du Crédit Mutuel v. Reinhard Herrmann Case No. DTV2009-0008 1. The Parties
The Complainant is Confédération Nationale Du Crédit Mutuel of Paris, France, represented by MEYER & Partenaires, France.
The Respondent is Reinhard Herrmann of Ockenheim, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with PSI-USA, Inc. dba Domain Robot. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 5, 2009. On October 6, 2009, the Center transmitted by email to PSI-USA, Inc. dba Domain Robot a request for registrar verification in connection with the disputed domain name. On October 7, 2009, PSI-USA, Inc. dba Domain Robot transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 9, 2009. The Center verified that the Complaint together with the amendment to the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 12, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 3, 2009.
The Center appointed Michel N. Bertschy as the sole panelist in this matter on November 4, 2009. 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, Confédération Nationale du Crédit Mutuel (hereinafter “Crédit Mutuel” or the Complainant), is the political and central body of the Crédit Mutuel Banking Group – a French banking and insurance service group, which provides services to approximately fourteen million clients for more than a century. Crédit Mutuel consists of a network of 3100 offices in France, managed through eighteen regional banks.
The Complainant is the owner of multiple trademarks in France and worldwide that are consisting of or including the term “credit mutuel”. Crédit Mutuel is in particular the owner of :
- CREDIT MUTUEL, a French semi-figurative trademark, registeration No. 1475940, filed on July 8, 1988, for classes 35 and 36 (Nice Agreement), renewed on May 15, 1998;
- CREDIT MUTUEL, a French semi-figurative trademark, registration No. 1646012, filed on November 20, 1990, for classes 16, 35, 36, 38 (Internet services) and 41 (Nice Agreement), renewed on November 20, 2000;
- CREDIT MUTUEL, a semi-figurative International trademark, registration No. 570 182, filed on May 17, 1991, for classes 16, 35, 36, 38 and 41 (Nice Agreement);
- CREDIT MUTUEL, a semi-figurative German trademark, registration No. 1186818, filed on May 22, 1990, for classes 5, 16, 35, 36 and 41(Nice Agreement).
The Complainant has been continuously using its CREDIT MUTUEL trademarks for over two decades.
Moreover, the Complainant operates a web portal under the uniform resource locator
“”, dedicated to its products and services. The Complainant promotes its activities, among others, through its registered domain names: and . Furthermore, Crédit Mutuel's computing subsidiary, Euro-Information, had also registered the domain names , , and . All these domain names direct consumers to the Complainant's official website. 5. Parties' Contentions A. Complainant i) Identical or Confusingly Similar
The Complainant contends that the domain name is identical or confusingly similar to the trademarks and service marks in which it has rights (Policy, paragraph 4(a)(i), Rules, paragraphs 3(b)(viii), (b)(ix)(1)) because the trademark CREDIT MUTUEL is entirely reproduced in the disputed domain name, the absence of space or stresses in disputed domain names having to be ignored in examining their identity or confusing similarity to trademarks (cf. Confédération Nationale du Crédit Mutuel and Crédit Industriel et Commercial S.A. v. Trabaja Jayam, Zeb Fi Tarmatek,WIPO Case No. DLC2009-0002; Confédération Nationale du Crédit Mutuel v. Daniel Delcore,WIPO Case No. DLC2009-0001). Moreover, the specific top level domain name “.tv” is not an element of distinctiveness that can be taken into consideration when evaluating the identity and similarity of the complainant's trademark and the disputed domain name (cf. Confédération Nationale du Crédit Mutuel v. Nicolas Pete,WIPO Case No. DBZ2009-0001; Confédération Nationale du Crédit Mutuel and Crédit Industriel et Commercial S.A. v. Trabaja Jayam, Zeb Fi Tarmatek,WIPO Case No. DLC2009-0002). Furthermore, the domain name consists of words that are identical to the Complainant's trademark CREDIT MUTUEL except that the domain name contains the non-ASCII character “é” in place of the simple ASCII character “e”. The use of the non-ASCII character “é” in place of the simple ASCII character “e” has little or no significance, either technical or otherwise. The difference is minute and most web browsers support IDN characters. (cf. Fortuneo v. Johann Guinebert,WIPO Case No. D2001-0781; Confederation Nationale Du Credit Mutuel v. Equitron,WIPO Case No. D2007-0622). ii) Rights or Legitimate Interests
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the domain name (Policy, paragraph 4(a)(ii), Rules, paragraph 3(b)(ix)(2)) since he is not related in any way to the Complainant's business. The Respondent is not one of the Complainant's agents and does not carry out any activity for, or has any business with it. The Respondent is not currently and has never been known under the term “CREDIT MUTUEL”, and has no trademark right on it. Neither licence nor authorization has been granted to Respondent to make any use, or apply for registration of the domain name by the Complainant. Moreover, the Complainant contends that the disputed domain name was registered by the Respondent to take advantage of the Complainant's trademark reputation and to confuse and divert Internet users, that the Respondent registered the disputed domain name with the intention of creating a parking page with commercial links related to financial services which are identical to the services offered by the Complainant. The Complainant contends that in similar circumstances, panels decided that the Respondent had neither rights nor legitimate interests in the disputed domain name (Societe Anonyme des Galeries Lafayette and Galeries Lafayette Voyages v. Domains By Proxy, Inc./Reinhard Herrmann,WIPO Case No. D2009-0904; France Printemps v. Reinhard Herrmann,WIPO Case No. D2007-0971). Last but least, the Respondent has not engaged in any action which show he has rights or legitimate interests in the disputed domain name. iii) Registered and Used in Bad Faith
The Complainant finally contends that the domain name was registered and is being used in bad faith (Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3)):
iii.a) Bad faith registration
CREDIT MUTUEL is only used in French and not in the English or German languages. An English translation would be “Mutual Credit”, and a German translation “Gegenseitiger Kredit”. It is asserted that it may reasonably be assumed that the Respondent knew about the Complainant's trademarks and business when it registered the disputed domain name since the Complainant has been well-known under this name for many decades and the Complainant's business name and mark CREDIT MUTUEL, consisting of the French words for “credit” and “mutuel”, constitutes a most unlikely choice of a business name. Moreover, the Respondent registered the disputed domain name exclusively for the purpose of taking advantage of Internet traffic, from Internet users - especially French users, where the Complainant is mainly doing business - looking for CREDIT MUTUEL products and services on the Internet (cf. Societe Anonyme des Galeries Lafayette and Galeries Lafayette Voyages v. Domains By Proxy, Inc./Reinhard Herrmann, supra; France Printemps v. Reinhard Herrmann, supra; Confédération Nationale du Crédit Mutuel v. Nicolas Pete, supra; Confédération Nationale du Crédit Mutuel and Crédit Industriel et Commercial S.A. v. Trabaja Jayam, Zeb Fi Tarmatek, supra).
iii.b) Bad faith use
The Respondent is using the disputed domain name to divert Internet users to a parking webpage providing sponsored links in French to some of the Complainant's competitors, such as “Boursorama, Société Générale, Crédit Lyonnais etc...” The Complainant submits that panels have found that parking a domain name in such a manner for financial gain demonstrates bad faith on the part of the registrant (Societe Anonyme des Galeries Lafayette and Galeries Lafayette Voyages v. Domains By Proxy, Inc./Reinhard Herrmann, supra; France Printemps v. Reinhard Herrmann, supra). iv) Remedies requested
In accordance with paragraph 4(i) of the Policy, for the reasons described above, the Complainant requests the Administrative Panel issue a decision that the disputed domain name be transferred to it. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and to obtain relief. These elements are that:
(i) the respondent's domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the respondent's domain name has been registered and is being used in bad faith.
Each of the three elements must be proved by a complainant to warrant relief. A. Identical or Confusingly Similar
There are two requirements that a complainant must establish under paragraph 4(a)(i) of the Policy; that it has rights in a trade or service mark, and that the domain name is identical or confusingly similar to the marks.
The consensus view of WIPO UDRP panels is that if a complainant owns a registered trademark then it satisfies the requirement of having trademark rights (ROHO Inc. v. Mark Duane,WIPO Case No. D2001-1168). The Complainant has proved this requirement.
The use of the top level of the domain name “.tv” does not change the identical nature of the mark (ROHO), supra. The Complainant has used the mark CREDIT MUTUEL since at least 1988, and holds several rights in trademarks comprising the distinctive portion CREDIT MUTUEL. The disputed domain name is identical to the distinctive portion of the Complainant's trademarks CREDIT MUTUEL. The Complainant has established the identity of the domain name and the trademark.
The first requirement of paragraph 4(a) the Policy is satisfied. B. Rights or Legitimate Interests
A Complainant bears the burden of proof under paragraph 4(a)(ii) of the Policy, which burden shifts to a respondent once the complainant makes his case prima facie. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If a respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (AIB-Vincotte Belgium ASBL, AIB-Vincotte USA Inc./Corporation Texas v. Guillermo Lozada, Jr., WIPO Case No. D2005-0485; Belupo d.d. v. WACHEM d.o.o.WIPO Case No. D2004-0110; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
Paragraph 4(c)(iii) of the Policy sets forth examples of circumstances whereby a domain name registrant may demonstrate a right or legitimate interest in a domain name, including: “... 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”.
The Respondent did not reply to the Complainant's contentions. The Respondent's default does not automatically result in a decision in favor of the Complainant. Subject to the principles described above, the Complainant must establish each of the three elements required by paragraph 4(a) of the UDRP. While a panel may draw negative inferences from the Respondent's default, paragraph 4 of the Policy requires the Complainant to support its assertions with actual evidence in order to succeed in a UDRP proceeding.
The Respondent is not a licensee of the Complainant and is not otherwise authorized to use the Complainant's marks. The Respondent does not use the name for his proper business purposes but uses it as a link to web sites operated by the Complainant's competitors. The Panel holds that in these circumstances the Respondent is clearly not making a legitimate non commercial or fair use of the domain name and is, for commercial gain, intentionally and misleadingly diverting consumers from the Complainant's legitimate web sites. There is therefore no reason to suppose that the Respondent could claim a right or legitimate interest in respect of the domain name on any other basis.
The Panel thus finds that the second requirement of paragraph 4(a) of the Policy is satisfied. C. Registered and Used in Bad Faith
For paragraph 4(a)(iii) of the Policy to apply, the Complainant must demonstrate the conjunctive conditions that the Respondent registered the domain name in bad faith and continues to use it in bad faith.
Paragraph 4(b) of the Policy sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including: (1) “[the Respondent] has registered or has 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 [the Respondent's] documented out-of-pocket costs directly related to the domain name, or”; (2) “[has] 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 [the Respondent has] engaged in a pattern of such conduct; or” (3) “[the Respondent] has registered the domain name primarily for the purpose of disrupting the business of a competitor, or; (4)”by using the domain name [the Respondent] has intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on line location, by creating a likelihood of confusion with the Complainant's mark as to the source, affiliation or endorsement of [its] website or location or of a product or service on [its] website or location”.
Whether the Respondent has registered and used the Complainant's name in bad faith is clearly evident on the facts of this case. Indeed, the Complainant has proved that the Respondent has registered a domain name which incorporates the trademark CREDIT MUTUEL, suggesting a clear affiliation with the Complainant. The website operated by the Respondent diverts Internet users to a parking webpage providing sponsored links in French to some of the Complainant's competitors. As the Respondent has failed to provide any bona fide explanation for this, the Panel concludes that the Respondent has attempted to attract, for commercial gain, Internet users to a commercial online location by creating a clear likelihood of confusion with the Complainant's trademarks.
Furthermore, it is well-settled that the practice of typo squatting, in and of itself, can be seen as an indication of the bad faith registration of a domain name (Longs Drug Stores California, Inc. v. Shep Dog, WIPO Case No. D2004-1069; Lexar Media, Inc. v. Huang,WIPO Case No. D2004-1039; Wal-Mart Stores, Inc. v. Longo,WIPO Case No. D2004-0816).
The fact that the Respondent has a history of typo squatting only strengthens the inference of bad faith (Societe Anonyme des Galeries Lafayette and Galeries Lafayette Voyage v. Domains By Proxy, Inc./Reinhard Herrmann, supra; BCBG MAX AZRIA GROUP contre M. Reinhard Herrmann, WIPO Case No. DFR2008-0040; France Printemps v. Reinhard Herrmann, supra).
The Panel therefore holds that the domain name was registered and used in bad faith. The third requirement of paragraph 4(a) of the Policy is satisfied. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Michel N. Bertschy
Sole Panelist
Dated: November 18, 2009
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