creditmutuels.com

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Confédération Nationale du Crédit Mutuel v. “Thierry Manni”

Case No. D2007-1481

1. The Parties

The Complainant is Confédération Nationale du Crédit Mutuel, of Paris, France, represented by Meyer & Partenaires, Strasbourg, France.

The Respondent is “Thierry Manni”, of Fontvielle, Principality of Monaco.

2. The Domain Name and Registrar

The disputed domain name <creditmutuels.com> is registered with eNom, Inc.

3. Procedural History

Issuance of the Complaint

The Complaint was submitted electronically to the WIPO Arbitration and Mediation Center (the “Center”) on October 8, 2007. A paper original of the Complaint together with annexes were sent by courier on the same date, and received by the Center on October 11, 2007. On the latter date, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the domain name at issue. On the same day, eNom, Inc. transmitted by e-mail to the Center its verification response confirming that Thierry Manni is listed as the registrant and providing the contact details.

Notification to Respondent

On October 17, 2007, the Center formally issued to the Respondent a Notification of Complaint and Commencement of Administrative Proceeding (including a copy of the filed Complaint) to both the postal and email addresses of the Respondent, as provided by the Registrar. The proceedings commenced on the same day. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2007. The Respondent did not submit any response. Thus, the Center notified the Respondent’s default on November 9, 2007.

Appointment of the Panel

The Center appointed Kamen Troller as the sole panelist in this matter on November 19, 2007. 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

A. The Complainant

The Complainant is a French association and one of the largest banking groups in France, offering all kinds of financial services and products, including online banking services under the domain name <creditmutuel.com>. The Complainant provides services to more than 10 million clients and consists of a network of 3,100 offices in France, managed through 18 regional groups. In addition, the Complainant has 40 offices outside of France, including one office in Monaco.

The Complainant provided evidence of a number of trademark registrations consisting of the term “credit mutuel”, for instance:

- CREDIT MUTUEL, a French figurative trademark in respect of classes 35 and 36 of the Nice Agreement, registered on July 8, 1988, and renewed on May 15, 1998 (registration n° 1475940);

- CREDIT MUTUEL, a French figurative trademark in respect of classes 16, 35, 36, 38 and 41 of the Nice Agreement, registered on November 20, 1990, and renewed on November 20, 2000 (registration n° 1646012);

- CREDIT MUTUEL, an International semi-figurative trademark in respect of classes 16, 35, 36, 38 and 41, registered on May 17, 1991, (registration

n° 570182).

The Complainant is the registrant, under Euro-Information, which is the name of the computing subsidiary of the Crédit Mutuel Group, of the following domain names:

- <creditmutuel.com>, created on October 28, 1995;

- <creditmutuel.eu>, created on March 13, 2006;

- <creditmutuel.mobi>, created on September 26, 2006;

- <creditmutuel.fr>, created on August 10, 1995.

B. The Respondent

The Respondent registered the domain name <creditmutuels.com> on March 4, 2007.

The Registrar provides the following information: the Registrant of the disputed domain name is Thierry Manni, domiciled in Fontvielle, the Principality of Monaco, <[email]@yahoo.fr>.

According to the “white pages” service of Monaco (“www.pagesjaunesmonaco.com”), there are two individuals in Monaco named Thierry Manni:

- Thierry, Charles, Pierre, Manni, domiciled [at an address on] Boulevard du Jardin Exotique, Monaco; and

- Thierry Manni, domiciled [at an address on] rue Louis Auréglia, Monaco.

On September 25, 2007, Thierry, Charles, Pierre, Manni sent to the Complainant a “Sworn Statement”, along with a copy of his identity card, declaring:

“I, the undersigned Thierry Manni, born on [a date] at Monaco, currently domiciled at [a number] Bld du Jardin exotique, hereby certify that I did not proceed to the registration and use of the Domain name creditmutuels.com. I also certify that I have never communicated under the email address related to the aforesaid domain name and mentioned in the Whois database, i.e., <[email]@yahoo.fr>”.

The Respondent did not submit any statement of defence. To the best knowledge of the Panel, the Respondent did not register “creditmutuels” as a trademark in any jurisdiction, nor is he well-known under this name.

The Cease and desist letter

According to the Complainant’s contentions, the Complainant sent a cease and desist letter to Thierry Manni, domiciled in Aigues Marines, Fontvielle, Monaco (being the name and contact details in the Whois) on August 29, 2007, by registered mail and email; no response was received to the communications.

5. Parties’ Contentions

A. Complainant

The Complainant alleges that each of the three elements specified in paragraph 4(a) of the Policy are applicable to the disputed domain name. More precisely, it asserts that:

(i) the domain name <creditmutuels.com> is similar to the Complainant’s trademark CREDIT MUTUEL because the trademark is entirely reproduced in the disputed domain name and the mere adjunction of the letter “s” at the end of the domain name is of no consequence with respect to the confusing similarity with the trademark “CREDIT MUTUEL”.

The Complainant also contends that the domain name <creditmutuels.com> constitutes a case of typo squatting of the trademark CREDIT MUTUEL, because the only difference between both consists of the addition of the letter “s”, which constitutes the plural form of the Complainant’s trademark, CREDIT MUTUEL”.

(ii) the Respondent has no right or legitimate interest in the domain name: the Complainant contends that the Respondent is neither related in any way to the Complainant’s business, nor has acquired any right in Credit Mutuels.

(iii) the domain has been registered and is used in bad faith: the Complainant alleges that it is difficult to imagine that the Respondent could have ignored the trademark CREDIT MUTUEL at the time it applied for the domain name <creditmutuels.com>. Moreover, the Complainant asserts that the domain name <creditmutuels.com> is likely to be used inadvertently by Internet users, when attempting to access Complainant’s website.

The Complainant further contends that the Respondent’s operating of the domain name <creditmutuels.com> constitutes bad faith, because the said domain name is only pointing to a webpage with a security access log-in, which can not constitute a real use of a domain name. The Complainant considers therefore that the domain name <creditmutuels.com> could be used at any time for phishing attacks. Even if the Respondent does not intend to activate the said domain name for phishing attacks, the Complainant asserts that the present passive holding can amount to the Respondent acting in bad faith, due to the fact that the Respondent (a) would like to profit from the fame of the Complainant’s trademark with significant potential for consumers confusion, (b) has made no use of the disputed domain name and has submitted no evidence of any good faith use of the latter, and that (c) non use of the domain name <creditmutuels.com> is harmful for the Complainant. The Complainant finally alleges that it is not possible to imagine any plausible active use in the future by the Respondent that would be legitimate.

The Complainant requests the Administrative Panel to issue a decision that the disputed domain name be transferred to the Complainant.

B. Respondent

There was no response filed by the Respondent.

6. Discussion and Findings

A. Procedural matters

Formal communications to the Respondent

Under the Rules, the Respondent is defined as the holder of the disputed domain name against which a complaint is initiated (Rules, para 1; see also Confédération Nationale du Crédit Mutuel v. Marley Bryan, WIPO Case No. D2007-0072).

In casu, the Respondent is “Thierry Manni”, listed in the publically accessible Whois database and confirmed by the Registrar to be domiciled in Aigues Marines, Fontvielle, Monaco, with a listed email address <[email]@yahoo.fr>.

The Respondent was notified of the Commencement of Administrative Proceeding by email on September 17, 2007 and by post on September 18, 2007. A copy of the Complaint was sent to the Respondent on the same dates, by the same means of communication.

The Panel considers that the “sworn statement” sent to the Complainant on September 25, 2007, by Thierry, Charles, Pierre, Manni, domiciled officially at [number] Boulevard du Jardin Exotique, Monaco, while it may indicate that Mr. Thierry Charles Pierre Manni may not be the true underlying registrant of the disputed domain name, “Thierry Manni”, listed in the Whois to be of Fontvielle, Monaco, will in the absence of additional information be regarded by the Panel as the appropriate Respondent in the instant proceeding.

Indeed, the Respondent, being in reality Thierry, Charles, Pierre, Manni, or not, has been formally notified of the Commencement of Administrative Proceedings and has received a copy of the Complaint in accordance with Art. 2 of the Rules.

Default of the Respondent

In such cases where the Respondent did not submit a response, Art. 5(e) of the Rules states that in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.

No such exceptional circumstances are apparent to the Panel on the available record in the present case. The rule mentioned above shall thus be applied.

B. Substantive matters

Pursuant to Art. 4(a) of the Policy, the Complainant must prove that each of the three elements are present:

(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 domain name has been registered and is being used in bad faith.

(a) Identical or confusingly similar

Numerous prior decisions have held that minor deviations between a domain name and a trademark do not prevent a finding of confusing similarity.

For instance, the following domain names have been found confusingly similar to a trademark: <creditmutuell.com> with CREDIT MUTUEL (Crédit Industriel et Commercial, Confédération Nationale du Crédit Mutuel v. Marketing Total S.A., WIPO Case No. D2007-0753); <credimutuelle.com> with CREDIT MUTUEL (Confédération Nationale du Crédit Mutuel v. Web Advertising Corp, WIPO Case No. D2007-0655); <credirmutuel.com> with CREDIT MUTUEL (Confédération Nationale du Crédit Mutuel v. Web Advertising Corp, WIPO Case No. D2007-0655); <creditsuisseb.com> with CREDIT SUISSE (Crédit Suisse Group v. John Alli, WIPO Case No. D2004-0637); <credit-siusse.com> with CREDIT SUISSE (Crédit Suisse Group v. VPDD UBGM ltd, WIPO Case No. D2007-0867); <creditswiss.net>, with CREDIT SUISSE (Crédit Suisse Group v. Milanes-Espinach, Fernando and Milanes-Espinach, SA, WIPO Case No. D2000-1376), <taxl.com> with TALX (Talx corporation v. Husam Abboud, WIPO Case No. D2007-0186); <ggoogle.com> with GOOGLE (Google, Inc. v. Namerental.com and Leonard Bensonoff, WIPO Case No. D2001-0060).

In the case at hand, the Panel finds that the domain name <creditmutuels.com> and the CREDIT MUTUEL trademark are confusingly similar, based upon the following factors:

- <creditmutuels.com> contains the CREDIT MUTUEL trademark entirely;

- The only difference between the disputed domain name and the Complainant’s trademark is the addition of the letter “s” at the end;

- The domain name <creditmutuels.com> has no specific meaning in French or in English, as the correct spelling of “credit mutuel” in plural would be, in French, “credits mutuels”;

- CREDIT MUTUEL is a well-known and distinctive trademark that is entitled to strong level of protection.

Considering these circumstances, the Panel concludes that the domain name is confusingly similar to a trademark in which the Complainant has rights.

(b) Rights or legitimate interests

It has been long-established that once a Complainant has established a prima facie case that a Respondent lacks rights or legitimate interests in a disputed domain name, the burden of establishing such right or legitimate interest passes to the Respondent. The Panel is satisfied that the Complainant here has made such a case, and that it is therefore encumbant on the Respondent to respond.

Paragraph 4(c) of the Policy defines the circumstances required for the Respondent to demonstrate “rights to and a legitimate interest in the domain name”, the Respondent only being required to demonstrate one of the following circumstances (in particular and without limitation) to prove its rights to or legitimate interest in the domain name:

(i) before any notice to you of the dispute, your 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 or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate non-commercial 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.

By not submitting a response to the present Complaint, the Panel finds that the Respondent has made it impossible for the Panel to acknowledge the existence of any of these circumstances.

On the contrary, the Panel notes that more than eight months after having registered the disputed domain name, the Respondent failed to create any genuine content on the website accessible through <creditmutuels.com>, which contains nothing except a “Client Log-In” system and an “Access Code” field. Moreover, to the best knowledge of the Panel, the Respondent did neither register “creditmutuels” as a trademark in any jurisdiction, nor is he commonly known by this name. Further, the Panel notes the uncontradicted statement by the Complainant that it has not authorized the Respondent’s use of the Domain Name.

Based on these considerations, the Respondent has failed to satisfy the conditions of Art. 4(c) of the Policy. The Panel thus concludes that he has no rights or legitimate interests in the domain name.

(c) Bad faith

Art. 4(a) (iii) of the Policy requires the Complainant to prove use in bad faith as well as registration in bad faith.

Art. 4(b) of the Policy sets forth a non-exclusive list of circumstances each of which shall be evidence that the registration and use of a domain name is in bad faith:

(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 website or location or of a product or service on your web site or location.

Registration in bad faith

In a similar case, it has been held that the CREDIT MUTUEL trademark is well-known and that, therefore, it was very unlikely that an English Respondent was not aware of the said trademark (Confédération Nationale du Crédit Mutuel, supra.); it has also been held, in a case where the Respondent was domiciled in Senegal, that the CREDIT MUTUEL mark is highly distinctive and has been well known for decades (Confédération Nationale du Crédit Mutuel v. Credit Mutuele Bank Sénégal, WIPO Case No. D2007-1331).

In the present case, the Panel finds that the disputed domain name has been registered in bad faith for the following reasons:

- The Complainant’s CREDIT MUTUEL mark is highly distinctive;

- CREDIT MUTUEL is one of the largest banking groups in France;

- There is a CREDIT MUTUEL office in Monaco, where the Respondent is listed in the Whois as being domiciled;

- The disputed domain name was registered 19 years after the Complainant acquired registered rights in the trademark CREDIT MUTUEL, and 12 years after the creation of the domain name <creditmutuel.com>.

Use in bad faith

The disputed domain name points to a webpage containing nothing other than what may or may not be (but is clearly intended to resemble) a secured log-in system.

The Complainant asserts that Mr. Thierry, Charles, Pierre, Manni, domiciled at [number] Boulevard du Jardin Exotique, Monaco, seems to be victim of an identity theft and that a person or entity unknown has registered the domain name <creditmutuels.com> in his name, in order to avoid condemnations, which would constitute an act of bad faith.

The Complainant further contends that the disputed domain name could be used at any moment for phishing attacks, which would also constitute a bad faith use.

The Complainant finally alleges that it is not possible to imagine any plausible active use in the future by the Respondent that would be legitimate.

First, the Panels considers, in line with Telstra Corporation Ltd v. Nuclear Marshmallows ( WIPO Case No. D2000-0003), that “the concept of a domain name “being used in bad faith” is not limited to positive actions; inaction is within the concept. That is to say, it is possible, under certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”

Second, prior Panels have held that the apparent concealment of true identity by a registrant may be evidence that the respondent, who may or may not be a different person, is using a domain name in bad faith (Confédération Nationale du Crédit Mutuel, supra).

In the case at hand, the Panel finds that the evidence is inconclusive: nothing proves that the Respondent, “Thierry Manni”, is concealing his true identity. The fact that an individual with the same first and last name domiciled in Monaco claims not to be the Registrant of the disputed domain name does not lead to any determinative conclusion, since it is possible that the Respondent’s true identity is Thierry Manni, and that he is domiciled in Monaco, even if the Respondent is not registered under the “white pages” service of Monaco. Likewise, the fact that the Respondent did not reply to the cease and desist letter sent by the Complainant or to the Complaint in the present case does not alone allow the Panel to find that the Respondent is concealing his true identity.

However, in a case where the disputed domain name is inactive, concealing his true identity is not a sinequa non condition for a finding of bad faith use (Teachers Insurance and Annuity Association of America v. Wreaks Communications Group, WIPO Case No. D2006-0483; Naf Naf Company v. Myriam Blaes, WIPO Case No. D2006-0720).

Third, it is the Panel’s opinion that, if proven, the use of a domain name for phishing attacks could be considered as a bad faith use. The Panel finds that there is no evidence in the present case of such activity.

Nevertheless, the Panel does note the disputed domain name appears to be inactive (other than the above-described “log-in”) and seems to have been inactive since its creation, eight months ago, and that the Respondent did not submit any response to the Center in order to explain what its intent is, and in that context the Panel struggles to imagine, prima facie (Crédit Suisse Group v. Milanes-Espinach, Fernando and Milanes-Espinach, SA, WIPO Case No. D2000-1376), that the Respondent is likely to have a legitimate intent in mind.

Even if the intent of the Respondent was not to use the disputed domain name for phishing attacks, the result would not be different. The Panel notes indeed that a prior decision has held, in a case of an inactive domain name,

“in the absence of any rights or legitimate interest of the Respondent in the said domain name, [… ] on the balance of probabilities, any use of the said domain name by the Respondent would inevitably result in an intentional attempt to attract, for commercial gain, Internet users to the Respondent’s website 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 the Respondent’s site or location or of a product or service on the Respondent’s website or location” (Crédit Suisse Group, supra).

The same principle was held in 2007 in Microsoft Corporation v. Lucas van der Molen ( WIPO Case No. D2007-1360): “it is inconceivable that the Respondent could make any active use of the domain name […] that would not be illegitimate, such as by being a passing off or an infringement of the Complainant’s right under trademark law. A disclaimer would not cure that illegitimacy”.

In the case at hand, due to the fact that the domain name <creditmutuels.com> is confusingly similar to the CREDIT MUTUEL trademark, registered notably in respect of class 36 of the Nice Classification (financial and monetary affairs) and whose meaning is undoubtedly related to the commercial world, the Panel can not conceive, prima facie, that the Respondent could make any active use of the domain name <creditmutuels.com> that would not be illegitimate.

Therefore, this constitutes a bad faith use according to Art. 4(b)(iv) of the Policy.

7. Decision

The Panel decides that the domain name <creditmutuels.com> is confusingly similar to the trademark “CREDIT MUTUEL”; that the Respondent has no rights or legitimate interests in respect of the domain name; and, that the Respondent has registered and used the domain name in bad faith.

Pursuant to Art. 4(a) of the Policy and 15 of the Rules, the Panel decides that the domain name <creditmutuels.com> be transferred to the Complainant.

Kamen Troller
Sole Panelist

Dated: November 30, 2007