Westmore · UDRP DecisionCaaquitaine.com
The Panel ordered transfer of <caaquitaine.com> after finding it confusingly similar to the Complainant’s registered CA trademark, that the Respondent lacked rights or legitimate interests, and that the domain name had been registered and used in bad faith. The domain combined CA with “Aquitaine,” where a subsidiary of the Complainant was located, and resolved to a pay-per-click parking page containing links relating to the Complainant’s industry and competing goods and services.
The timeline behind caaquitaine.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind caaquitaine.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how a short trademark combined with a geographically meaningful term can satisfy confusing similarity when the geographic term reinforces an association with the complainant’s organization. It also shows the importance panels may place on pay-per-click links directed to the complainant’s industry when evaluating both legitimate interests and bad faith.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Credit Agricole S.A. v. zhangwei/YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) Case No. D2016-0555 1. The Parties The Complainant is Credit Agricole S.A. of Montrouge Cedex, France, represented by Nameshield, France. The Respondent is zhangwei of Chengde, Hebei, China / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) of Beijing, China. 2. The Domain Name and Registrar The disputed domain name <caaquitaine.com> is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 21, 2016. On March 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 24, 2016, 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 March 24, 2016 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 on the same day. On March 24, 2016, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On the same day, the Complainant submitted its request that English be the language of the proceeding. On March 27, 2016, the Respondent sent an email communication in English indicating his English is not good, and he would like to negotiate with the Complainant. On March 29, 2016, the Center invited the Complainant to comment whether it would like to suspend the proceeding to explore possible settlement between the parties. Per the Complainant’s request, the proceeding was suspended on the same day until April 28, 2016. Per the Complainant’s request, the proceeding was reinstituted on April 12, 2016. 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 of the Complaint in both Chinese and English, and the proceeding commenced on April 14, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 4, 2016. The Center did not receive any substantive email communication from the Respondent. On May 6, 2016, the Center informed the parties that it would proceed with panel appointment. On the same day, an email communication was received from the Respondent. The Center appointed Francine Tan as the sole panelist in this matter on May 12, 2016. 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 one of the largest banks in France and Europe, with regional subsidiaries within France and abroad. The Complainant’s group assists its clients with projects in France and around the world, in all areas of banking and trades. One of the Complainant’s subdiaries (named Caisse Regionale De Credit Agricole Mutuel D’Aquitaine) is from the administrative region of Aquitaine. The said subsidiary owns and operates the domain name <ca-aquitaine.fr>. The Complainant’s domain name <ca-aquitaine.com> was registered on March 12, 2001. The Complainant owns a number of trade mark registrations which contain CA (including a stylized logo comprising the letters CA), which is licensed and used by its subsidiaries. The disputed domain name was registered on December 14, 2015 and is used in connection with a parking page with pay-per-clicks which connect to the weblinks of competitors of the Complainant. 5. Parties’ Contentions A. Complainant It is asserted, firstly, that the disputed domain name is confusingly similar to the Complainant’s domain name <ca-aquitaine.com> and includes the Complainant’s distinctive trade mark CA. The letters “ca” in the disputed domain name are joined with the suffix “Aquitaine”, a geographical reference to the French territory. The addition of this term to the disputed domain name is not sufficient to distinguish the disputed domain name from the Complainant’s CA trade marks. Secondly, it is asserted that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not affiliated with nor authorized by the Complainant in any way; and the Complainant has no business or other relationship with the Respondent. The disputed domain name resolves to a parking page with commercial links (in French), referring, in particular, to the Complainant’s business activity ( e.g ., “Ouvrir un compte en ligne”, “Rachat Credit revolving”, “Credit & pret”). These links generate search results for goods and services, some of which compete with the Complainant. Such use of the disputed domain name does not confer rights or legitimate interests. Thirdly, the Complainant asserts that the disputed domain name was registered and is being used in bad faith. The Respondent was aware of the Complainant’s trade marks and domain name <ca-aquitaine.com> when it registered the disputed domain name. The disputed domain name has no meaning in Chinese, English or any other language. The linking of the disputed domain name to the goods and services relating to the Complainant’s industry is evidence of bad faith, as it shows that the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s CA trade marks as to the source, sponsorship, affiliation, or endorsement of its website or location, or of a product or service on its website or location. B. Respondent The Respondent did not file a formal Response but sent an email in English to the Center on March 27, 2016 in which he stated that he is a Chinese student, that his English is not good, and “[he does] not understand the law”. He said that he would like a “simple way to solve” the matter simply and requested the Complainant’s “contact email” as he “would like to negotiate with him”. 6. Discussion and Findings A. Language of the Proceeding The language of the Registration Agreement in this case is Chinese. The Complainant requested that English be treated as the language of the proceeding for the reason that English is the most widely-spoken language in international relations and is one of the working languages of the Center. Further, the disputed domain name comprises Roman characters, and the Complainant has no knowledge of Chinese. To proceed in Chinese, the Complainant would have to engage translators at a cost that is very likely to be higher than the overall cost of the administrative proceeding. This would pose a burden on the Complainant. The Respondent has been informed by the Center of the proceeding in Chinese and been afforded the opportunity to respond in Chinese. Paragraph 11(a) of the Rules stipulates that: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The Panel determines in this case that it would be appropriate for English to be the language of the proceeding. The Respondent is clearly able to understand the nature of the administrative proceeding and to communicate in English, as he did, both with the Center and the Complainant’s representative. He used terms in English which show a level of sophistication and familiarity with the language. It would unduly delay the proceeding if the Complainant were required to translate the Complaint and annexes into Chinese, which does not appear to be necessary in view of the ability of the Respondent to communicate in English language, albeit not perfectly. Paragraph 10(c) of the Rules provides that “The Panel shall ensure that the administrative proceeding takes place with due expedition”. With a view to achieving this aim and on a balance of the various interests, the Panel is of the view that the Respondent would not be prejudiced by a decision to have the language of the proceeding English. B. Identical or Confusingly Similar The Complainant has shown it has registered trade mark rights in CA. The disputed domain name comprises these two letters and the geographical name “aquitaine”. Applying the well-established principles that elements such as “.com” are to be disregarded in the evaluation of the issue of paragraph 4(a)(i) of the Policy, and that the addition of generic or descriptive terms in a domain name in disputed does not serve to remove the confusing similarity with a complainant’s mark (and in this case, the geographical region of Aquitaine is one in which a subsidiary of the Complainant is located), the Panel accordingly finds that the disputed domain name is confusingly similar to the Complainant’s CA trade mark. The first element of paragraph 4(a) of the Policy has therefore been established. C. Rights or Legitimate Interests The Complainant is required under the Policy to establish a prima facie case that the Respondent does not have rights or legitimate interests in respect of the disputed domain name (see paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition). Once a prima facie case is established by the Complainant, the burden of production shifts to the Respondent to show how he has rights or legitimate interests in the disputed domain name. The Panel finds that the Complainant has established a prima facie case of the Respondent’s lack of rights or legitimate interests in the disputed domain name. The Respondent does not appear to have made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services (paragraph 4(c)(i), Policy); there is no evidence that the Respondent, a Chinese student, has been commonly known by the disputed domain name (paragraph 4(c)(ii), Policy); and the evidence of the Respondent’s use of the disputed domain name does not support a finding that he is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers (paragraph 4(c)(iii), Policy). On an assessment of the contents of the Respondent’s email communications, it is quite evident that the Respondent has no rights or legitimate interests in the disputed domain name. The use of the disputed domain name for the purposes of profiting from pay-per-click revenue and linking the page to competing goods and services of third parties, does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The Panel therefore finds that the second element of paragraph 4(a) of the Policy has been established. D. Registered and Used in Bad Faith For the reasons given above and in light of the circumstances, the Panel also concludes that the registration and use of the disputed domain name have been in bad faith. In its communications, the Respondent did not deny knowledge of the Complainant and its mark, nor did he assert rights or legitimacy in his registration of the disputed domain name. The circumstances do indicate that the Respondent registered or acquired the disputed domain name primarily for the purpose of selling or otherwise transferring it to the Complainant who is the owner of the trade mark or to a competitor of that Complainant, for valuable consideration in excess of his documented out-of-pocket costs directly related to the disputed domain name (paragraph 4(b)(i), Policy) and/or by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the said location or of a product or service on that location (paragraph 4(b)(iv), Policy). The Panel therefore finds that the third element of paragraph 4(a) of the Policy has been established. 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 <caaquitaine.com> be transferred to the Complainant. Francine Tan Sole Panelist Date: May 19, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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