WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Oney Bank v. Hai Lin, Lin Hai
Case No. D2020-0035
1. The Parties
The Complainant is Oney Bank, France, represented by SafeBrands, France.
The Respondent is Hai Lin, Lin Hai, China.
2. The Domain Name and Registrar
The disputed domain name <banqueaccord.com> is registered with DropCatch.com LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 9, 2020. On January 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 9, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 2, 2020. The Respondent sent email communications on January 13, 2020 and January 18, 2020 asking the suspension of the proceedings to explore settlement options. The Complainant informed on January 17, 2020 that it did not want the proceedings to be suspended and reiterating that it had already attempted an amicable solution prior to initiating the proceeding. The Respondent did not submit a formal reply and the Center notified the Commencement of Panel Appointment Process on February 3, 2020.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on February 19, 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 renders consumer credit, electronic payments and payment card management services. It is the owner, amongst others, of the following trademark registrations (Annex 7 to the Complaint):
- French Trademark Registration No. 99810015 for BANQUE ACCORD, registered on August 31, 1999 and valid until August 31, 2029, in classes 9, 35, 36, 38, 39, 41, 42 and 45; and
- International Trademark Registration No. 823504 for BANQUE ACCORD, registered on
May 26, 2003 and valid until May 26, 2023, in classes 9, 35, 36, 38 and 42.
The disputed domain name <banqueaccord.com> was originally created by the Complainant on October 10, 2001 (Annex 9 to the Complaint) but appears to not have been renewed due to an administrative error in the renewal process and then subsequently registered by someone other than the Complainant on November 11, 2019. No active webpage resolves from the disputed domain name.
5. Parties’ Contentions
A. Complainant
The Complainant asserts to be one of the leading financial agents in the European Union with a portfolio of 10 million customers in 11 countries, including China, where the Respondent is located, rendering financial services since 1983 under the BANQUE ACCORD trademark.
According to the Complainant, the disputed domain name which is identical to the Complainant’s trademark was originally created, registered and held by the Complainant since October 10, 2001 (Annex 9 to the Complaint) but was not renewed due to an administrative error in the renewal process and then subsequently appropriated by the Respondent.
Also according to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name given that:
(i) the Respondent has no rights in respect of the disputed domain name, not holding any trademarks or trade name relating to it (Annex 10 to the Complaint);
(ii) the Respondent is not an affiliate of the Complainant and has not been authorized by the Complainant to use the registered trademark BANQUE ACCORD as a domain name;
(iii) the Respondent is passively holding the disputed domain name; and
(iv) the offer for sale of the disputed domain name made by the Respondent in a reply to the cease and desist letter sent by the Complainant (Annex 11 to the Complaint) does not characterize a bona fide offering of goods or services or a legitimate non commercial or fair use of the disputed domain name.
The Complainant contends that the disputed domain name was registered in bad faith with the sole intent of obtaining financial benefit by taking advantage of the Complainant’s trademark and is now being passively held what is further corroborated by (i) potential “cyberflight” in view of the change of the Respondent’s name and details after the initial contact made at the email address <buydomain@...> (Annex 12 to the Complaint); (ii) the reply received by Mr. Mars offering to transfer the disputed domain name in exchange for USD 2,000 (Annex 13 to the Complaint), later reduced to USD 1,800 (Annex 14 to the Complaint); (iii) the website that resolved from the disputed domain name offered it for sale (Annex 15 to the Complaint) and (iv) the disputed domain name is being offered for sale at the UniRegistry platform for USD 20,000 (Annex 16 to the Complaint).
B. Respondent
The Respondent did not formally reply to the Complainant’s contentions but sent two informal messages to the Center on January 13, 2020 asking the suspension of the proceedings to explore settlement options and on January 18, 2020 reiterating such request and stating that he had asked USD 999 for the disputed domain name which ought to be donated to the Red Cross Society of China, since he wanted to “give [the disputed] domain name to people in need”.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order the transfer of the disputed domain name to the Complainant:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present in order to obtain the transfer of the disputed domain name.
A. Identical or Confusingly Similar
The Complainant has established rights in the BANQUE ACCORD trademark, duly registered.
The Panel finds that the disputed domain name <banqueaccord.com> reproduces the Complainant’s mark in its entirety, being the first element of the Policy established.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non‑exclusive list of circumstances that indicate a respondent’s rights to or legitimate interests in a disputed domain name. These circumstances are:
(i) before any notice of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, in spite of not having acquired trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent has failed to invoke any of the circumstances which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the disputed domain name. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules. Nevertheless, the burden is still on the Complainant to first make a prima facie case against the Respondent.
In that sense, the Complainant indeed states that the Respondent is not an affiliate of the Complainant and has not been authorized by the Complainant to use the registered trademark BANQUE ACCORD as a domain name.
In addition to that, the use made of the disputed domain name, merely advertising it for sale for an amount in excess of the out-of-pocket costs for registering it does not characterize an evidence of the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
Also, the absence of any indication that the Respondent has rights in a term corresponding to the disputed domain name, or any possible link between the Respondent and the disputed domain name that could be inferred from the details known of the Respondent or the webpage relating to the disputed domain name, corroborate with the Panel’s finding of the absence of rights or legitimate interests.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name.
C. Registered and Used in Bad Faith
The Policy indicates in paragraph 4(b) that bad faith registration and use can be found in view of:
(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring it to the Complainant who is the owner of a trademark relating to the disputed domain name or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed 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
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other location, by creating a likelihood of confusion with the Complainants’ mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
The registration and use of the disputed domain name in bad faith can be found in the present case in view of the following circumstances:
(i) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use of the disputed domain name.
(ii) the disputed domain name is being offered for sale for the amount of USD 20,000 which is clearly an amount in excess of out-of-pocket costs incurred in the registration of the disputed domain name;
(iii) the Respondent further attempted to sell the disputed domain name to the Complainant for smaller amounts, having made a last offer for USD 999 which is still an amount in excess of the costs involved in registering the disputed domain name;
(iv) as seen above, in his last communication with the Center the Respondent states that he wanted to “give [the disputed] domain name to people in need” and therefore requests that the USD 999 amount be donated to the Red Cross Society of China; such conduct characterizes, under this Panel’s view, more than a pretextual excuse to hide the Respondent’s true intention of unduly profiting from the value in the Complainant’s trademark, but rather a clear indication of the implausibility of any good faith use to which the disputed domain name may be put.
For the reasons stated above, the Respondent’s conduct amounts, in this Panel’s view, to bad faith registration and use of the disputed domain name.
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 <banqueaccord.com> be transferred to the Complainant.
Wilson Pinheiro Jabur
Sole Panelist
Date: February 21, 2020
