Confederation Nationale du Crédit Mutuel v. Domains by Proxy, Inc. / Gomes Paulo
Case No. DWS2008-0001
1. The Parties
The Complainant is Confederation Nationale du Crédit Mutuel, Paris, France, represented by MEYER & Partenaires, France.
The Respondent is Domains by Proxy, Inc. / Gomes Paulo, Boulazac, France.
2. The Domain Name and Registrar
The disputed domain name <creditmutuel.ws> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 7, 2008. On March 10, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On March 11, 2008, GoDaddy.com, Inc. 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 March 14, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On March 15, 2008, “Gomes Paulo” submitted a brief email communication to the Center confirming that he was the registrant of the disputed domain name. The Complainant filed an amended Complaint on March 20. 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”), 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 March 26, 2008.
The proceedings were suspended on the request of the Complainant, until July 4, 2008, at which date the Complainant filed a request to re-institute the proceedings. The proceedings were re-instituted as from July 8, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was July 22, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 23, 2008.
On July 23, 2008, the Center received an e-mail from the Respondent contesting the Center's Notification of Respondent Default and stating “I am in contact with MEYER & Partenaires and Crédit Mutuel for a amical resolution. We do not want a dispute in the WIPO”.
The Center appointed William Lobelson as the sole panelist in this matter on July 30, 2008. 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 a well known bank, which operates a very wide network of branches under the name “Crédit Mutuel” in France. The Complainant owns several domain names and trademark registrations for CREDIT MUTUEL (French Reg. No. 1 475 940, International Reg. No. 570 182 inter alia).
It has become aware of the registration and use of a domain name <creditmutuel.ws>, being emphasized that the said domain had been registered anonymously through a private proxy service.
The domain name resolves to a web page which displays a history of the Complainant's business (copied from Wikipedia), a list of sponsored links as well as a clear offer for sale of the contested domain name, through an e-mail address [email protected].
Pursuant to the filing of the Complaint, the genuine proprietor of the domain name disclosed his identity and place of residence, thus revealing that he is an individual living in France.
The Complaint was amended accordingly, but the Respondent did not file any observation in response.
5. Parties' Contentions
A. Complainant
The Complainant contends that :
- The disputed domain name is identical to its earlier registered trademark;
- The Respondent has no right or legitimate interest in the disputed domain name and evidently has no bona fide intent to use the same;
- The Respondent could not ignore the rights vested in the earlier trademark when it registered the domain name, in bad faith;
- The Respondent uses the disputed domain name in bad faith for it let the public believe that the same is owned and operated by the Complainant, while diverting traffic to a misleading web page for the purpose of speculating over the domain name (the page contains a message that the domain is for sale) and making financial gains (sponsored links are displayed on the web page).
B. Respondent
The Respondent did not formally reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The contested domain name is <creditmutuel.ws>.
The Complainant has provided evidence that it owns valid trademark rights in the name “Crédit Mutuel”.
The domain name, being formed with the term “créditmutuel”, must be considered as identical to the Complainant's mark CREDIT MUTUEL.
As rightfully emphasized by the Complainant, the absence of space or stresses between the component words “credit” and “mutuel” in the contested domain name is of no relevance (Crédit Industriel et Commercial v. Xubo,
WIPO Case No. D2006-1268).
The technical suffix “.ws” is also irrelevant as it is also well established that the specific top level domain name is not an element of distinctiveness that is taken into consideration when evaluating the identity or similarity of the complainant's trademark and the disputed domain name (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,
WIPO Case No. D2005-1525; Phenomedia AG v. Meta Verzeichnis Com,
WIPO Case No. D2001-0374 ; Nokia Corporation v. David Wills,
WIPO Case No. DWS2001-0004 <nokia.ws>).
The Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the following circumstances can demonstrate that the Respondent has rights to or legitimate interests in the disputed domain name:
(i) before any notice was given to the Respondent of the dispute, the Respondent used, or demonstrably made 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) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights; or
(iii) the Respondent is 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.
The Complainant states that it is not related in any manner to the Respondent and that it has not authorized the latter to use its trademark; that the Respondent has not been known and has not run any bona fide business in the field of bank and finance under the disputed name; that it has deliberately registered a domain name identical to its trademark with a view to unduly benefit from the goodwill attached thereto and misdirect traffic for commercial gain.
It is a consensus view of WIPO UDRP panelists (see e.g.WIPO Overview of WIPO Panel Views on Selected UDRP Questions – and cases cited therein) that the overall burden of proof under paragraph 4(c) of the Policy rests with the Complainant, which is required to establish that the Respondent prima facie lacks any rights to, or legitimate interests in, the disputed domain name, and that if the Respondent fails to answer such case, the Complainant is deemed to have satisfied its burden of proof (Croatia Airlines d.d. v. Modern Empire Internet Ltd.,
WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
The Respondent has not denied any of the Complainant's assertions and has not brought any element showing that it has a right or legitimate interest in the disputed domain name.
The Panel considers that there is no apparent element in the present case record which would justify a finding that Respondent has rights or legitimate interests in the disputed domain name.
The Panel is therefore satisfied that the Respondent has no rights or legitimate interests in the disputed domain name, in accordance with the provisions of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant has substantiated its contentions that its trademark CREDIT MUTUEL is widely known and benefits from a high level of reputation and recognition among the public, in the field of bank and finance services, at least in France.
The Panel observes that the Respondent, namely Mr. Paulo Gomes, who claims to be the proprietor of the contested domain name, has confirmed in writing that he was domiciled in Paris, France.
The Panel is therefore under the impression that the Respondent is likely to have been aware of the Complainant's trademark rights in CREDIT MUTUEL when it registered the disputed domain name.
It also transpires from the evidence supplied by the Complainant that the Respondent's web site is in French language and contains historical information about the Complainant's business.
This clearly reveals in the Panel's opinion that the Respondent necessarily had the Complainant's trademark in mind when it registered the contested domain name. It therefore acted in bad faith.
The evidence supplied by the Complainant reveals that the Respondent does not make any bona fide use of the domain name, which is routed to a web page which contains some information on the background of the Complainant's business.
According to the Complainant, said content is copied from the online encyclopaedia Wikipedia.
By displaying on its web page such apparently official information about the Complainant, the Respondent misleads the public in the sense that it let Internet users believe that the web page accessible through the contested domain name is operated by the Complainant itself.
Such a deceptive conduct must be regarded as bad faith use of the domain name.
The Panel notices that the Respondent's web page also contains a list of sponsored links as well as an unambiguous offer for sale of the domain name.
This well known practice of domain name parking enables the domain name holder not only to speculate by the possible sale of the Domain Name, but also to collect a financial remuneration proportional to the number of connections to the parking website and activated sponsored links operated through the parked domain name.
In the present case, the Respondent does not make any legitimate use of the disputed domain name; it has simply parked the Domain Name with an apparent view to selling it and meanwhile, benefits from the fame and goodwill vested in the Complainant's marks by attracting the public to a website with links to various other web sites.
Hence, not only does the Respondent get financial gains out of the Complainant's marks but it also diverts and deceives the Complainant's potential customers.
As determined by prior UDRP decisions, parking a domain name in such a manner for financial gain is common among cyber-squatting cases and demonstrates bad faith on the part of the registrant. (See, e.g.,Deloitte Touche Tohmatsu v. Henry Chan,
WIPO Case No. D2003-0584; Maplin Electronics Limited v. Lee Jeongsoon,WIPO Case No. D2006-0011).
Finally, it is noted that the Respondent's offer for sale of the domain name, through an e-mail address [email protected], not only does increase the risk of deceptiveness towards the public (which is wrongly under the impression that the contested domain name and associated web page are the Complainants'), but also reveals that the Respondent's intentions in respect of the contested domain name are purely speculative.
The Panel finds therefore that the Respondent, with purely speculative intentions, has deliberately adopted and used the disputed domain name in order to take advantage of the fame and goodwill of the Complainant's trademark, with a view to misleadingly attracting the Complainant's actual and potential customers to sponsored links and thus make financial gains to the detriment of the Complainant, as per paragraph 4(b)(iv) of the Policy. (See, e.g.,Nora Baumberger v. SAND WebNames – For Sale,
WIPO Case No. D2001-0502, and Microsoft Corporation v. MindKind,
WIPO Case No. D2001-0193).
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.
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 <creditmutuel.ws> be transferred to the Complainant.
William Lobelson Sole Panelist
Dated: August 13, 2008
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