Westmore · UDRP DecisionBanq-populaire.com
The Panel ordered transfer of <banq-populaire.com> to BPCE. It found the domain confusingly similar to BPCE’s BANQUE POPULAIRE mark because omitting the silent letters “u” and “e” did not distinguish it. The Panel also found no rights or legitimate interests, relying on the absence of authorization, the Respondent’s lack of evidence, and evidence of a website purporting to provide financial services using false contact information. Bad faith was established because the domain intentionally targeted BPCE’s reputation and was likely used for phishing through a purported sham financial institution; taking down the website did not alter that conclusion.
The timeline behind banq-populaire.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 banq-populaire.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates how a slight omission-based misspelling of a banking mark, combined with use for purported financial services, can provide mutually reinforcing evidence across all three UDRP elements. The case is particularly useful because the Panel treated later removal of the website as immaterial where prior use indicated deliberate targeting and likely phishing.
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 BPCE v. Sidoine Tonami, 3S-Computing Case No. D2017-0410 1. The Parties The Complainant is BPCE of Paris, France, represented by DBK - Société d’avocats, France. The Respondent is Sidoine Tonami, 3S-Computing of Cotonou, Benin. 2. The Domain Name and Registrar The disputed domain name <banq-populaire.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 1, 2017. On March 1, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 2, 2017, 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 March 15, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 4, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 6, 2017. The Center appointed James Bridgeman as the sole panelist in this matter on April 18, 2017. 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 French joint stock company which carries on a banking, financing and insurance business through two cooperative banking networks, Banque Populaire and Caisse d’Epargne and its subsidiaries using the BANQUE POPULAIRE trademark and service mark. The Complainant and its subsidiaries are the owners of more than 60 French trademark registrations incorporating the term “Banque Populaire” and associated to other denominative elements including the following trademark registrations: French trademark BANQUE POPULAIRE, registered under number 3113485 on July 25, 2001, for services in classes 36 and 38; European Union Trademark BANQUE POPULAIRE + X EURO, registered under number 863886 on June 29, 1998, for services in classes 16 and 36; and French trademark +X BANQUE POPULAIRE, registered under number 3929244 on June 22, 2012, for services in classes 9, 35 and 36. The Complainant is also the owner of numerous domain names, all of which resolve to corresponding active websites, including: - <banque-populaire.fr>, registered in 2002, - <banque-populaire.com>, registered in 1998, - <banquepopulaire.fr>, registered in 2002, - <banquepopulaire.com>, registered in 2001, - <banquepopulaire.info>, registered in 2007. The disputed domain name <banq-populaire.com> was registered on October 3, 2016. For a period it resolved to an active website offering financial services but now appears to be inactive. 5. Parties’ Contentions A. Complainant The Complainant relies on its rights in the above listed registered trademarks and claims to have a protectable goodwill in the BANQUE POPULAIRE mark in France and other jurisdictions. It has 108,000 employees serving a total of 35 million customers, with a commercial presence in 46 countries via its various subsidiaries. The Complainant submits that the disputed domain name <banq-populaire.com> is confusingly similar to its BANQUE POPULAIRE mark. The omission of the letters “u” and “e” from the word “banque” does not serve to avoid the likelihood of confusion with the Complainant’s mark and the use of the disputed domain name is calculated to, and likely to cause confusion among users of the Internet. The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. The disputed domain name has been linked to a website which a recent search shows is no longer active. While the Respondent’s website was active it purported to offer banking services which the Complainant submits are fake and do not constitute a legitimate bona fide offering of goods or services. In support of this allegation, the Complainant submits that the services offered on the website associated with the disputed domain name refers specifically to the possibilities of zero interest rate loans offered by French legislation on mortgage lending while the Respondent presents itself as a company located in Benin; furthermore there is no company or subsidiary having, or linked to, the denomination “Banq Populaire”, or providing online banking services under such name registered at the location mentioned on the website (an address in the city of Belfort, France) or in France in general; and the phone number published on the contact tab is a mobile number. The Complainant submits that taken together these facts are indicative of phishing practices aimed at misleading the Complainant’s customers and enticing them to disclose their personal information and allow access to their bank accounts. The Complainant furthermore submits that the disputed domain name was registered and is being used by the Respondent in bad faith. The Complainant submits that because of the extent of the Complainant’s rights and reputation in the use of the BANQUE POPULAIRE mark, pre-dating the registration of the disputed domain name, the Respondent must have been aware of the Complainant’s rights in the BANQUE POPULAIRE mark at the time the disputed domain name was registered. (Citing the decision of the panel in The Gap, Inc. v. Deng Youqian , WIPO Case No. D2009-0113 , where the panel referring to earlier decisions under the Policy held that “registration of a well-known trademark as a domain name is a clear indication of bad faith in itself, even without considering other elements. See Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co. , WIPO Case No. D2000-0163 ; PepsiCo, Inc. v. “null”, aka Alexander Zhavoronkov, WIPO Case No. D2002-0562 ; Pepsico, Inc. v. Domain Admin , WIPO Case No. D2006-0435 .”). Furthermore the Complainant submits that the likelihood of confusion with the Complainant’s trademarks, its website and its activities created by the use of the disputed domain name by the Respondent, creates especially serious risks in the banking and financial sectors. This is particularly so in the present case where it is clear that the main purpose of the Respondent’s use of the disputed domain name and the related website was for “phishing” financial information in an attempt to defraud the Complainant’s customers. Prior decisions of panels under the Policy have held that the use of a disputed domain name for defrauding Internet users by the operation of a “phishing” website is perhaps the clearest evidence of registration and use of a domain name in bad faith (Citing The Royal Bank of Scotland Group plc v. Secret Registration Customer ID 232883 / Lauren Terrado , WIPO Case No. D2012-2093 ). The Complainant submits that the Respondent’s bad faith is therefore indisputably established. The Complainant also submits that it appears that the Respondent has provided false contact information, which is also indicative of bad faith. (Citing the decision of the panel in Nintendo of America Inc. v. Berric Lipson , WIPO Case No. D2000-1121 ) Furthermore, the Complainant, citing the decision in Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 ), submits that in the circumstances of the present case the Respondent’s passive holding of the disputed domain name indicates bad faith registration and use. In this regard the Complainant submits in particular that: (i) the Complainant’s trademark has a strong reputation and is widely known, as evidenced by its substantial use in France; (ii) the Respondent will not be able to provide any evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain name; (iii) the Respondent has taken active steps to conceal its true identity, by operating under a name that is not a registered business name; (iv) the Respondent has actively provided, and failed to correct, false contact details, in breach of its registration agreement; and (v) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the disputed domain name by the Respondent that would not be illegitimate, such as passing off, infringing consumer protection legislation, or infringing the Complainant’s rights under trademark law. The Complainant submits therefore that in accordance with paragraph 4(b)(iv) of the Policy the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the website or other online location to which the disputed domain name has resolved, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service. B. Respondent The Respondent did not reply to the Complainant’s contentions. On April 6, 2017 the Respondent sent an email to the Center stating: “Hi, this is a domain name for one of my client. the domain is already locked by the hoster. and i really don't know the meaning of all those documents. What do you really expect?”. 6. Discussion and Findings Paragraph 4(a) of the Policy requires the Complainant to establish that: 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. A. Identical or Confusingly Similar The Complainant has provided convincing evidence that it is the owner of, and has rights in, the trademark and service mark BANQUE POPULAIRE through its above-listed trademark registrations and its extensive use of the mark in France and 46 other jurisdictions across the world. This Panel accepts the Complainant’s submissions that the disputed domain name is confusingly similar to the Complainant’s BANQUE POPULAIRE mark. The omission of the letters “u” and “e” do not serve in any way to distinguish the disputed domain name from the mark. These letters are silent when pronounced for both in English. Furthermore in the present case the generic Top-Level Domain (“gTLD”) “.com” extension may be ignored for the purposes of comparison. This Panel finds therefore that the Complainant has satisfied the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant as owner of the BANQUE POPULAIRE mark has not granted any right or license to the Respondent to use its mark or any similar mark in a domain name. Furthermore the Complainant has provided evidence that the Respondent was engaging in phishing activities as it appears that “Banq Populaire” is not a registered company anywhere and the Respondent has been providing false contact information to the public in relation to the purported provision of banking and financial services on the website to which the disputed domain name resolved. It is well established that where a complainant makes out a prima facie case in this regard the burden of production shifts to the Respondent to provide evidence of such rights or legitimate interest. In this case the Respondent has failed to file a Response or provide any evidence or submissions. The Respondent is not commonly known by the disputed domain name and the disputed domain name cannot be said to be used for a bona fide offering of goods or services. In the circumstances this Panel finds that the Complainant has also satisfied the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith In the absence of any Response or other explanation, this Panel finds on the balance of probabilities that the disputed domain name was registered and is being used in bad faith. This Panel accepts the Complainant’s submission that when the disputed domain name was registered on October 3, 2016 the registrant of the disputed domain name must have been aware of the Complainant’s goodwill and reputation in the BANQUE POPULAIRE mark and the Complainant’s Internet presence through its websites to which the Complainant’s above-listed domain names resolve. On the evidence this Panel finds that the disputed domain name was intentionally selected and registered in order to target and mislead innocent Internet users and to take predatory advantage of the goodwill and reputation of the Complainant and its mark for the purposes of diverting Internet traffic to the Respondent’s website which has likely been set up for the purposes of phishing as alleged by the Complainant. In reaching this conclusion this Panel is fortified by the fact that the Respondent appears to have set up a website associated with a sham financial institution using a name and domain name deceptively similar to the Complainant’s mark. The Respondent’s subsequent taking down of the website does not alter the Panel’s bad faith finding. This Panel therefore finds that the Complainant has also satisfied the third and final element of the test in paragraph 4(a) of the Policy and is entitled to succeed in this proceeding. 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 <banq-populaire.com> be transferred to the Complainant. James Bridgeman Sole Panelist Date: May 1, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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