Westmore · UDRP DecisionCreditmutuel.company
The Panel ordered transfer of <creditmutuel.company>. It found the domain confusingly similar to Complainant’s CREDIT MUTUEL trademarks, that Respondent lacked rights or legitimate interests, and that the domain was registered and used in bad faith. The decisive evidence included Complainant’s longstanding trademark rights, the mark’s goodwill and renown in France, Respondent’s location in France, the domain’s reproduction of the mark, and its use for a phishing or malware website.
The timeline behind creditmutuel.company
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This decision illustrates a straightforward UDRP application where an established financial-services mark was reproduced in full and the domain was used for phishing or malware. The harmful use was independently important under both the rights-or-legitimate-interests and bad-faith elements, while the mark’s renown, Respondent’s location, and the business-related gTLD supported the finding of deliberate targeting at registration.
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 Confédération Nationale du Crédit Mutuel v. David Leparoux Case No. D2018-1818 1. The Parties Complainant is Confédération Nationale du Crédit Mutuel of Paris, France, represented by MEYER & Partenaires, France. Respondent is David Leparoux of Paris, France. 2. The Domain Name and Registrar The disputed domain name <creditmutuel.company> is registered with Key-Systems GmbH dba domaindiscount24.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 9, 2018. On August 9, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 10, 2018, 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 Complainant on August 16, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the amended Complaint on August 16, 2018. 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 Respondent of the Complaint, and the proceedings commenced on September 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 30, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 1, 2018. The Center appointed Nathalie Dreyfus as the sole panelist in this matter on October 24, 2018. 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 Complainant is the political and central body for the banking Crédit Mutuel. Crédit Mutuel is the second leading banking and insurance services group in France, with over 12 million customers for more than a century. Crédit Mutuel is composed of a network of 3178 offices in France, congregated in 18 regional federations. The group is a major actor in the banking market for both individuals and businesses. Complainant’s main website is available at “www.creditmutuel.com” and “www.creditmutuel.fr”, dedicated to its off- and online services, including online banking services for its clients. Complainant has adduced evidence that it is the owner of a large number of trademarks consisting of or including the terms “credit mutuel”, in France and abroad, including the following: - CREDIT MUTUEL, French semi-figurative trademark No. 1475940, registered on July 8, 1988 (duly renewed), in classes 35 and 36; - CREDIT MUTUEL, French semi-figurative trademark No. 1646012, registered on November 20, 1990 (duly renewed), in classes 16, 35, 36, 38 and 41; - CREDIT MUTUEL, European Union word trademark No. 9943135, filed on May 5, 2011 and registered on October 20, 2011, in classes 9, 16, 35, 36, 38, 41, 42 and 45; - CREDIT MUTUEL, International semi-figurative trademark No. 570182, registered on May 17, 1991 (duly renewed), in classes 16, 35, 36, 38 and 41, designating inter alia Benelux, Italy and Portugal. Complainant (or its affiliates) is also the registered owner of a number of domain names consisting of the terms “credit mutuel”, including inter alia, <creditmutuel.com> (registered on October 28, 1995), <creditmutuel.fr> (registered on August 10, 1995), <creditmutuel.net> (registered on October 3, 1996), <creditmutuel.info> (registered on September 13, 2001) and <creditmutuel.org> (registered on June 3, 2002). The disputed domain name was registered on May 22, 2018. At the time of filing of the Complaint, it was resolving to a phishing or malware website, as detected by Google’s Safe Browsing (as shown by the evidence on record). 5. Parties’ Contentions A. Complainant Complainant submits that the disputed domain name is identical to its trademark, as the CREDIT MUTUEL trademark is identically reproduced in the disputed domain name and the generic Top-Level Domain (“gTLD”) “.company” is insufficient to distinguish the disputed domain name from Complainant’s trademark. Complainant argues that the TLD “.company” refers to Complainant or its activities. Complainant further states that Respondent does not have any rights or legitimate interests in the disputed domain name. In this regard, Complainant states that Respondent is not related in any way to Complainant or its business and neither is Respondent one of Complainant’s agents. Complainant also affirms that no license or authorization has been granted to Respondent to make any use or apply for registration of the disputed domain name. Complainant submits that the disputed domain name was registered and is being used in bad faith. Complainant holds that its CREDIT MUTUEL trademark enjoys a strong reputation and is well-known and that in similar cases where the disputed domain name consists of a well-known trademarks, there is a prima facie presumption that respondent registered the disputed domain name for the purpose of selling it to complainant or one of its competitors. Complainant submits that Respondent could not have ignored the reputation of the CREDIT MUTUEL brand at the time of registration and that Respondent registered the disputed domain name precisely because it was aware of the well-known character of Complainant’s brand. Complainant further states that Respondent chose the disputed domain name seeking to create an impression of association with Complainant. In addition, it underlines that CREDIT MUTUEL is neither a descriptive nor a generic term but rather a distinctive term. Moreover, Complainant argues that the choice of TLD “.company” is likely to increase the likelihood of confusion with Complainant as it may induce internet users into believing that there is an association between the disputed domain name and Complainant. Complainant highlights a previous decision under the Policy involving its CREDIT MUTUEL trademark whereby the panel found that, given the reputation of Complainant’s trademark, the registration of the disputed domain name was “clearly intended to mislead and divert consumers to the disputed domain name”. See Confédération nationale du credit mutual v. Yu Ke Rong, WIPO Case No. D2018-0948 (<creditmutuel.store>). Complainant also submits that Respondent’s use of the disputed domain name is in bad faith. Complainant states that the disputed domain name is currently inactive but previously resolved to a phishing website, which was subsequently shut down after being reported to the hosting provider and the competent authorities. Complainant underlines that it regularly faces phishing attempts and has to protect its clients from phishing attacks. Complainant holds that Respondent’s current “non-use” or passive holding of the disputed domain name constitutes bad faith given the strong reputation and renown of Complainant’s trademark, the absence of evidence of actual or contemplated good faith use by Respondent, and the fact that Respondent has taken active steps to conceal its identity. Complainant also states that the disputed domain name “might have been used for fraudulent emailing purposes”. B. Respondent Respondent did not reply to Complainant’s contentions and is therefore in default. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that to obtain the transfer of the disputed domain name, Complainant must prove that each of the following three elements are present: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) 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. Paragraph 15(a) of the Rules provides that “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraphs 10(b) and 10(d) of the Rules also provide that “[i]n all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case” and that “[t]he Panel shall determine the admissibility, relevance, materiality and weight of the evidence”. Furthermore, paragraph 14(b) of the Rules provides that “[i]f a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate”. Respondent did not reply to Complainant’s contentions. Respondent’s failure to respond, however, does not automatically result in a decision in favour of Complainant, although the Panel is entitled to draw appropriate inferences therefrom, in accordance with paragraph 14(b) of the Rules. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Taking the foregoing provisions into consideration the Panel finds as follows: A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires the Panel to consider first whether Complainant has established relevant trademark rights. Complainant has adduced evidence that it has registered trademark rights in CREDIT MUTUEL in connection, inter alia, with banking and financial services. The Panel is therefore satisfied that Complainant has established relevant trademark rights. The Panel is also required to examine under paragraph 4(a)(i) of the Policy whether the disputed domain name is identical or confusingly similar to Complainant’s trademarks. This test involves “a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name”. Section 1.7 of the WIPO Overview 3.0 . The Panel finds that the disputed domain name is confusingly similar to the textual components of Complainant’s trademark. Complainant’s trademark is clearly recognizable in the disputed domain name. The generic TLD “.company” is generally disregarded under the identity or confusing similarity test, as it is a functional element. See section 1.11 of the WIPO Overview 3.0 . The Panel therefore finds that the disputed domain name is confusingly similar to Complainant’s trademark. Complainant has therefore satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires a complainant to demonstrate that respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy sets out the following non-exhaustive list of circumstances that a respondent may rely on to demonstrate rights to or legitimate interests in a domain name, including: “(i) before any notice to [respondent] of the dispute, [respondent’s] use of, or demonstrable 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) [respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [respondent have] acquired no trade mark or service mark rights; or (iii) [respondent] is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.” A complainant is required to establish a prima facie case that respondent does not have rights or legitimate interests in the disputed domain name. Once such prima facie case is made, the burden of production shifts to respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. If, however, respondent fails to come forward with such relevant evidence, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See section 2.1 of the WIPO Overview 3.0 . The Panel has considered the statements and documents submitted by Complainant and finds that Complainant has made a prima facie showing of Respondent’s lack of rights to or legitimate interests in the disputed domain name and that, as a result of his default, Respondent has failed to rebut such a showing. Complainant has asserted that Respondent is not affiliated to Complainant or has been authorized by Complainant to use Complainant’s trademark, in a domain name or otherwise. There is no evidence that Respondent is commonly known by the disputed domain name or a name corresponding to the disputed domain name, in accordance with paragraph 4(c)(ii) of the Policy. Respondent’s use of the disputed domain name for a phishing or malware website cannot be considered neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name, in accordance with paragraphs 4(c)(i) and 4(c)(iii) of the Policy, as Respondent is seeking to take advantage of Complainant’s rights by deceptive means. See National Westminster Bank plc v. John Brendan , WIPO Case No. D2014-2045 . Furthermore, prior UDRP panels have categorically held that use of a domain name for phishing, distributing malware or any other type of fraudulent activity can never confer rights or legitimate interests in a domain name. See section 2.13.1 of the WIPO Overview 3.0 . The Panel also finds that Respondent’s lack of rights or legitimate interests in the disputed domain name can also be inferred in the circumstances of this case from Respondent’s failure to respond to Complainant’s contentions. See Pomellato S.p.A v. Richard Tonetti , WIPO Case No. D2000-0493 (“non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights”). The Panel therefore finds that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires Complainant to demonstrate that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances that may indicate bad faith, including but not limited to: “(i) circumstances indicating that [respondent has] registered or [has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) [respondent has] registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that [respondent has] engaged in a pattern of such conduct; or (iii) [respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or of a product or service on [respondent’s] web site or location.” The Panel is convinced, on a balance of probabilities, that Respondent registered the disputed domain name in bad faith. In this regard, the Panel notes that Complainant’s trademark not only significantly predates the registration date of the disputed domain name but also enjoys considerable goodwill and renown, particularly in France where Respondent is based. Complainant’s trademark has also acquired a considerable degree of distinctiveness in connection with banking and financial services. Furthermore, the nature of the disputed domain name itself, which consists of Complainant’s trademark under the TLD “.company”, a term that is strongly related to Complainant as Complainant is a business entity, is a strong indication that Respondent was targeting Complainant at the time of registration. The Panel therefore finds that the overall circumstances of this case strongly suggest that Respondent was aware of Complainant’s rights at the time of registration of the disputed domain name and that he did so in order to take advantage of such rights. The Panel also finds that Respondent’s use of the disputed domain name is in bad faith. The evidence on record shows that, at the time of filing of the Complaint, the disputed domain name resolved to a phishing or malware website. Respondent’s use of the disputed domain name for a phishing or malware website is in itself sufficient to support a finding of bad faith use of the disputed domain name, as Respondent is intentionally attempting to attract for commercial gain Internet users to his website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website, in accordance with paragraph 4(b)(iv) of the Policy. Finally, the Panel also draws an adverse inference from Respondent’s failure to take part in the present proceedings. The Panel finds that Respondent has both registered and used the disputed domain name in bad faith. Complainant has therefore satisfied paragraph 4(a)(iii) of the Policy. 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 <creditmutuel.company> be transferred to Complainant. Nathalie Dreyfus Sole Panelist Date: November 7, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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