WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Boursorama S.A. v. xushuaiwei

Case No. D2019-1579

1. The Parties

The Complainant is Boursorama S.A., France, represented by Nameshield, France.

The Respondent is xushuaiwei, China.

2. The Domain Names and Registrar

The disputed domain names <booursorama.com>, <boursoorama.com>, <boursoramma.com>, and <boursorrama.com> are registered with Xin Net Technology Corp. (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 5, 2019. On July 5, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 12, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 12, 2019, 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 July 12, 2019.

On July 12, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on July 12, 2019. The Respondent requested that Chinese be the language of the proceeding on July 16, 2019.

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 July 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 7, 2019. The Respondent did not submit any formal response by the specified due date. The Center notified the Parties of commencement of panel appointment process on August 8, 2019.

The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on August 21, 2019. 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 an online brokerage, financial information and online banking company, based in France. The Complainant states that it has over 1.7 million customers in France, which can access its services through its official website hosted at “www.boursorama.com”.

The Complainant provides evidence that it owns a trademark registration for BOURSORAMA (word mark), i.e., European Union trademark registration number 001758614, registered on October 19, 2001. The Complainant also owns an official domain name, <boursorama.com>, registered on March 1, 1998, through which it provides its financial services. The disputed domain names were all registered on July 2, 2019.

According to the evidence provided by the Complainant, the disputed domain names resolved to a parking page where the disputed domain names are offered for sale. The disputed domain names are currently linked to active webpages, containing pay-per-click links to third party service providers and to third party websites where bids for the sale of the disputed domain names can be made.

5. Parties’ Contentions

A. Complainant

The Complainant essentially contends that the disputed domain names are confusingly similar to its trademark for BOURSORAMA, that the Respondent has no rights or legitimate interests in respect of the disputed domain names, and that the disputed domain names were registered and are being used in bad faith.

The Complainant essentially claims that its trademark is famous and well-regarded in the financial sector, and provides evidence of its marketing materials, including the contents of its official website. The Complainant also refers to previous UDRP decisions in which its BOURSORAMA trademark was recognized as a well-known trademark. Moreover, the Complainant provides evidence that the disputed domain names are linked to active parking pages where the disputed domain names are offered for sale. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the domain names and constitutes use in bad faith.

The Complainant requests the transfer of the disputed domain names.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1. Preliminary Issue: Language of proceedings

Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceedings shall be the language of the Registration Agreement. However, the Panel is given the authority to determine a language of proceeding other than the language of the Registration Agreement, taking into account the circumstances of every individual case.

The Complainant states that the Registration Agreements of the disputed domain names are in Chinese. Nevertheless, the Complainant requests that the language of proceedings be English, essentially because it contends that English is the language most widely used in international relations and is one of the working languages of the Center, because the disputed domain names are made up of Latin letters and not Chinese characters, and because the use of Chinese would impose a burden on the Complainant. The Respondent replied on July 16, 2019 that the language of the proceedings should be Chinese, since the Registration Agreements are in Chinese and because Chinese is the working language of the Registrar.

The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of proceedings be English; the request of the Respondent that Chinese be the language of proceedings (noting, however, that the Respondent did not submit any arguments on the merits, which it could have done in Chinese); the fact that the disputed domain names are linked to active webpages that are mostly in English, so that the Panel concludes that the Respondent is able to understand and communicate in English; the fact that the Center’s communications were transmitted in both Chinese and English; and the fact that Chinese as the language of proceedings could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of proceedings shall be English.

6.2. Discussion and Findings on the merits

The Policy requires Complainant to prove three elements:

(i) the disputed domain names are 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 names; and

(iii) the disputed domain names have been registered and are being used in bad faith.

Based on the evidence and arguments submitted, the Panel’s findings are as follows:

A. Identical or Confusingly Similar

The Panel finds that the Complainant has shown that it has valid rights in the sign BOURSORAMA based on its intensive use and registration of the same as a trademark, incidentally commencing many years prior to the registration of the disputed domain names.

Moreover, as to confusing similarity, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9, states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.” In this case, the Panel considers that the disputed domain names are clearly selected by intentionally misspelling the Complainant’s trademark BOURSORAMA, each time incorporating such trademark in its entirety, except that a single character of the trademark is misspelled. According to the Panel, this is a clear case of intentional misspelling of the Complainant’s trademark, or “typosquatting”. Accordingly, the Panel rules that the disputed domain names are confusingly similar to the Complainant’s trademark and the first element required by the Policy is fulfilled.

B. Rights or Legitimate Interests

The Complainant has demonstrated that the Respondent is not an authorized reseller, service provider, licensee or distributor, and is not making legitimate noncommercial use or fair use of the Complainant's trademark. To the contrary, the websites linked to the disputed domain names currently display what are presumed to be pay-per-click hyperlinks to third party service providers, which include competitors of the Complainant. The Panel therefore considers that none of the circumstances of legitimate interests envisaged by paragraph 4(c) of the Policy apply. Furthermore, the Respondent is not commonly known by the disputed domain names. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements for the second element under the Policy.

C. Registered and Used in Bad Faith

The registration of the disputed domain names, which incorporate the Complainant’s trademark in its entirety, except for the intentional misspelling of one character in each disputed domain name, is clearly intended to mislead and divert consumers away from the Complainant’s official website, to the disputed domain names. Given the reputation and fame of the Complainant’s trademark, and the clearly intentional typosquatting, the Panel holds that the registration of the disputed domain names was obtained in bad faith. Moreover, even a cursory Internet search at the time of registration of the disputed domain names would have made it clear to the Respondent that the Complainant owns a registered trademark in BOURSORAMA and uses it extensively. In the Panel’s view, the preceding elements clearly indicate the bad faith of Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain names in bad faith.

As to use of the disputed domain names in bad faith, the websites linked to the disputed domain names currently display what are presumed to be pay-per-click hyperlinks to third party service providers, which include competitors of the Complainant. Moreover, according to the evidence provided by the Complainant, the websites linked to the disputed domain names, including for instance <boursorrama.com>, also contain an email address to be contacted to buy such disputed domain name. These elements lead the Panel to conclude that the Respondent is using the disputed domain names in bad faith, to take unfair advantage of the Complainant’s trademark. The Panel therefore rules that it has been demonstrated that the Respondent is using the disputed domain names in bad faith.

Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under 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 names, <booursorama.com>, <boursoorama.com>, <boursoramma.com>, and <boursorrama.com> be transferred to the Complainant.

Deanna Wong Wai Man
Sole Panelist
Date: August 29, 2019