WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Confederation Nationale Du Credit Mutuel v. On behalf of xn--crditmutuel-cbb.cc OWNER, c/o whoisproxy.com / Christelle Lacroix

Case No. DCC2019-0015

1. The Parties

The Complainant is Confederation Nationale Du Credit Mutuel, France, represented by MEYER & Partenaires, France.

The Respondent is On behalf of xn--crditmutuel-cbb.cc OWNER, c/o whoisproxy.com, United States of America / Christelle Lacroix, France.

2. The Domain Name and Registrar

The disputed domain name <créditmutuel.cc> [xn--crditmutuel-cbb.cc] is registered with Key-Systems GmbH (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 31, 2019. On January 2, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 3, 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 the same day, 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 amendment to the Complaint on January 7, 2020.

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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 4, 2020.

The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on February 13, 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 is part of a group of regional financial institutions founded over a century ago which collectively provide banking, insurance, and other financial services to 12 million customers through its 3,178 branches in France. According to the Complainant, it was one of the first banking groups to provide its clients with online banking and is today the second largest financial services institution in France.

The disputed domain name was registered on October 22, 2019.

It was initially registered using a privacy service, and resolved to an error page.

The identity of the Respondent was disclosed by the Registrar in response to the Center’s request for registrar verification in connection with the disputed domain name.

The Complainant has submitted forensic evidence that MX email servers have been activated for the disputed domain name.

The Complainant owns a large number of trademarks consisting of or including the wording “credit mutuel”, in France and internationally.

Its registrations for the trademark CREDIT MUTUEL (“Crédit Mutuel”) include, inter alia, the French trademark no. 1475940, registered on July 8, 1988, the French trademark no. 1646012, registered on November 20, 1990, the International trademark no. 570182, registered on May 17, 1991, and the European Union Trade Mark no. 9943135, registered on October 20, 2011 (together referred to hereinafter as: “the Mark”).

The Complainant’s IT-dedicated subsidiary Euro Information owns, inter alia, the <creditmutuel.fr> domain name, which resolves to the Complainant’s main website for online banking services.

5. Parties’ Contentions

A. Complainant

(i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is confusingly similar to the Mark insofar as the disputed domain name contains the Mark in its entirety, and that the use of the non-ASCII letter “é” is not capable of dispelling the confusing similarity.

(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends that it never authorized the Respondent to use the Mark in any manner and that the Respondent has never had any affiliation with the Complainant.

(iii) The Complainant submits that the Respondent has registered the disputed domain name in bad faith. The Complainant alleges that the Respondent had knowledge of the Mark when registering the disputed domain name.

(iv) The Complainant submits that the Respondent is using the disputed domain name in bad faith.

(v) The Complainant requests that the disputed domain name be transferred to the Complainant.

B. Respondent

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

6. Discussion and Findings

6.1. Procedural Aspects - Failure to respond

As aforementioned, no Response was received from the Respondent.

Under the Rules, paragraphs 5(f) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.

Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even in the event of a default.

Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.

In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.

Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.

6.2. Requirements of paragraph 4(a) of the Policy

A. Identical or Confusingly Similar

In comparing the Mark with the disputed domain name, it is evident that the latter consists of the Mark, written in lowercase with the French letter “é”, and followed by the Top-Level Domain (“TLD”) “.cc”.

It is well established that a TLD is viewed as a standard registration requirement and does not generally affect the assessment of a domain name for the purpose of determining identity or confusingly similarity. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.1.

The Panel finds that the disputed domain name is confusingly similar to the Mark, which is incorporated in its entirety, and that the use of the non-ASCII letter “é” in the disputed domain name does not dispel the confusing similarity, insofar as using this letter is the normal and correct manner to write the Mark in French in lowercase letters.

Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy, this could result in the often impossible task of proving a negative proposition, requiring information that is primarily, if not exclusively, within the knowledge of a respondent.

Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing, as the Panel believes the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.

As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name or uses (or has made bona fide preparations to use) the disputed domain name in a business.

The disputed domain name resolved to an error page.

No evidence is provided on any rights or legitimate interests the Respondent may have in the disputed domain name.

To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no affiliation with the Complainant and (ii) received no authorization from the Complainant to register or use the disputed domain name.

In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain name.

C. Registered and Used in Bad Faith

As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name confusingly similar to the Mark.

It is established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke, WIPO Case No. D2001-0775.

In this case, given that the Mark is well-known, as recognized by prior UDRP panels (see Confederation Nationale du Crédit Mutuel v. Philippe Marie, WIPO Case No. D2010-1513 and Confederation Nationale du Crédit Mutuel vMariano Jackline and Alex Leparox, WIPO Case No. D2013-2134), the Panel finds that it is impossible to believe that the Respondent chose to register the disputed domain name randomly with no knowledge of the Mark. See Barney’s Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384, citing Cellular One Group v. PaulBrien, WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092.

Additionally, a prior UDRP panel found in relation to the Complainant and to the Mark that using the non-ASCII letter “é” constitutes bad faith registration (see Confederation Nationale Du Credit Mutuel v. Equitron, WIPO Case No. D2007-0622).

The Panel finds it is not possible to imagine any plausible future active use of the disputed domain name that would not be illegitimate, considering the specificity of the Complainant’s activity.

The Panel also notes that many UDRP panels have held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148), considering the specificity of the activity.

Furthermore, the Panel notes that the Complainant has argued and provided evidence that email servers have been activated for the disputed domain name, making it possible to send emails for phishing purposes.

The passive holding of a domain name may also, in certain circumstances, be considered as evidence of bad faith use (see WIPO Overview 3.0, section 3.3).

In this case, the Respondent has taken active steps to hide its identity and has submitted no evidence of any good faith use of the disputed domain name. The Panel also notes that although using a privacy service to hide the identity of the registrant is not per se conclusive of bad faith registration and use (see Trinity Mirror Plc and MGN Ltd. v. Piranha Holdings, WIPO Case No. D2008-0004), the fact that the Respondent used a privacy service to hide its identity and contact details prevented the Complainant from contacting the Respondent.

Prior UDRP panels have held that deliberate concealment of identity and contact information may, in certain circumstances, be indicative of registration in bad faith (see TTT Moneycorp Limited. v. Diverse Communications, WIPO Case No. D2001-0725, and Schering Corporation v. Name Redacted, WIPO Case No. D2012-0729).

In addition, prior UDRP panels have held that by retaining control over a domain name, which it could activate at any time, the respondent creates a real or latent threat to the complainant, which is further evidence of bad faith registration and use (see WIPO Overview 3.0, section 3.1.4).

Finally, some UDRP panels have held that in certain circumstances, registrants of domain names have an affirmative duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.

The Panel concludes in the light of all these circumstances that the Respondent’s registration and use of the disputed domain name constitute bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case

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 <créditmutuel.cc> [xn--crditmutuel-cbb.cc] be transferred to the Complainant.

Louis-Bernard Buchman
Sole Panelist
Date: February 19, 2020