Westmore · UDRP DecisionXn--credtmutuel-879e.com
The Panel ordered transfer of <credịtmutuel.com>. It found the domain confusingly similar to the CREDIT MUTUEL marks because it replaced the ordinary letter “i” with the visually similar non-ASCII character “ị”. The Respondent presented no rights or legitimate interests, and the inactive website, activated email servers, well-known banking mark, nearly imperceptible misspelling, and Respondent’s default supported a finding of registration and use in bad faith under the passive-holding doctrine.
The timeline behind xn--credtmutuel-879e.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 xn--credtmutuel-879e.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates the application of the UDRP to a visually deceptive internationalized domain name targeting a well-known financial-services mark. It also shows that an inactive website does not preclude transfer where passive holding is combined with mark notoriety, a respondent default, a nearly imperceptible character substitution, and activated email infrastructure.
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. Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf/ Aleron Corbeil Case No. D2021-3193 1. The Parties The Complainant is Confédération nationale du Crédit mutuel, France, represented by MEYER & Partenaires, France. The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf, Iceland / Aleron Corbeil, France. 2. The Domain Name and Registrar The disputed domain name <credịtmutuel.com> (<xn--credtmutuel-879e.com>) is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 27, 2021. On September 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 28, 2021, 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 September 29, 2021, 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 October 4, 2021. 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 October 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 26, 2021. The Center appointed Elise Dufour as the sole panelist in this matter on October 29, 2021. 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 the political and central body for the banking group CREDIT MUTUEL, which is the second French banking and insurance services group, proving its services to 12 million clients for more than a century. It operates a number of web portals including a web portal at “www.creditmutuel.fr” (the “Complainant’s Website”) that offers online banking services. The Complainant owns several trademark registrations including the following trademarks: - CREDIT MUTUEL, French nominal trademark n° 1475940 with a registration date of July 8, 1988, duly renewed, in Classes 35 and 36; - CREDIT MUTUEL, French combined trademark n° 1646012 with a registration date of November 20, 1990, duly renewed, in Classes 16, 35, 36, 38 and 41. The Complainant is also the registrant of many domain names incorporating the trademark CREDIT MUTUEL such as <creditmutuel.com>, registered on October 28, 1995. The disputed domain name <credịtmutuel.com> was registered on April 10, 2021. The disputed domain name does not resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant contends that (i) the disputed domain name is identical or at least confusingly similar to the Complainant’s trademarks; (ii) the Respondent has no rights or legitimate interests in the disputed domain name; and (iii) the Respondent registered and is using the disputed domain name in bad faith. (i) The Complainant claims that the disputed domain name is identical or at least confusingly similar to the trademark CREDIT MUTUEL. The Complainant reminds that the generic Top-Level-Domain (“gTLD”) such as “.com” does not have to be taken into account while comparing the disputed domain name with the claimed trademarks. The Complainant stresses that the only distinction between the trademark and the disputed domain name is the absence of space between the two parts of the radical and the use of the non-ASCII letter “ị” instead of the letter “i”. The Complainant reminds that grapheme “ị” is called “Latin Small Letter I with Dot Below” and is used in the Vietnamese and in the Pan-Nigerian alphabets. It differs from the Latin common letter “i” only because of the dot below the “i”. Hence, the difference between <credịtmutuel.com> and <creditmutuel.com> is almost imperceptible and an average Internet user would surely not see the difference. (ii) The Respondent is an individual using the Complainant’s trademark CREDIT MUTUEL without license or authorization and not having any business relations with the Complainant. The Respondent is not commonly known under “Credit mutuel”. Further, the Respondent is not making any legitimate non-commercial or fair use of the disputed domain name inasmuch the disputed domain name resolves to an error page. (iii) Due to the strong reputation and well-known character of the trademark CREDIT MUTUEL, the Complainant considers that the Respondent could not have ignored the existence of the Complainant’s trademark at the time the disputed domain name was registered. The Complainant finds that the registration of a domain name, which differs from a well-known trademark only because of minor elements as the change of one letter by a similar non-ASCII letter, demonstrates the Respondent’s intention to select a domain name, which is sufficiently confusing to the trademark to attract the Internet users. For the Complainant, use of a WhoIs proxy and more particularly taking into account the Complainant’s banking activities is also a proof of bad faith. The Complainant finally points out that the disputed domain name points to a “time-out” error page and hence appears as being unused, which constitutes passive holding. In addition, the email servers are activated for the disputed domain name, enabling consequently the sending and receipt of potential fraudulent emails. In that respect, the Complainant indicates that, as a banking group, it has continually to face phishing attempts. For the Complainant, those circumstances support the idea that the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name and acts in bad faith. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In the absence of a formal Response, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely 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 was registered and is being used in bad faith. The Panel will further analyze the potential concurrence of the above circumstances. A. Identical or Confusingly Similar The disputed domain name wholly incorporates the Complainant’s trademarks CREDIT MUTUEL, which, as long established by previous UDRP panels, may be sufficient to determine that a disputed domain name is identical or confusingly similar to the Complainant’s trademarks. In addition, the disputed domain name only differs from the Complainant’s trademark CREDIT MUTUEL by the absence of the space between the two parts of the radical and the use of the non-ASCII letter “ị” instead of the letter “i”. The Panel finds that the Complainant’s mark is clearly recognizable and entirely contained in the disputed domain name. In that respect, a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. (See section 1.7 and section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“ WIPO Overview 3.0 ”). Finally, the applicable TLD “.com” in the disputed domain name is considered a standard technical registration requirement and, as such, is generally disregarded under the first element confusing similarity test, irrespective of its particular ordinary meaning, although said meaning may be relevant to the assessment of the second and third elements. (See section 1.11, WIPO Overview 3.0 ). Thus, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks. The Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests The burden of proof is on the Complainant to demonstrate a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Once the Complainant has made out a prima facie case, the Respondent may then, inter alia , demonstrate rights or legitimate interests in the disputed domain name by proving that one of the following circumstances of paragraph 4(c) of the Policy is applicable to the case: (i) before any notice of the dispute, the Respondent used, or made 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) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no 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. On the basis of the submitted evidence and arguments, the Panel considers that the Complainant has successfully established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name: The Respondent is not commonly known under the disputed domain name, nor owns any registered rights on the disputed domain name or has been authorized by the Complainant to use the prior trademarks in any way. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see section 2.1 of the WIPO Overview 3.0 ). The Respondent did not to reply to the Complaint, not providing any explanation or evidence of rights or legitimate interests in the disputed domain name. The Panel considers that if the Respondent had rights or legitimate interests in respect of the disputed domain name, the Respondent would have probably submitted a response to the Complaint. At the time of filing of the Complaint, the disputed domain name did not resolve to an active website, but an email server was set for the disputed domain name. The Panel finds that the set up of an email server associated with a domain name corresponding to a third party’s well-known trademark cannot amount to demonstrable preparations of use of the disputed domain name in connection with a bona fide offering of goods and services, nor to a legitimate, non-commercial or fair use of the disputed domain name without intent, for commercial gain, to misleadingly divert consumers or to tarnish the third party’s trademark. In view of the above, and in the absence of any contrary argument by the Respondent, the Panel is satisfied that also the second condition under the Policy is met and the Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith With regards to the registration of the disputed domain name, which encompasses the trademark CREDIT MUTUEL, and noting that the difference between <credịtmutuel.com> and <creditmutuel.com> is almost imperceptible to an average Internet user, the Panel considers it unlikely that, at the time of the registration of the disputed domain name, the Respondent did not know about the CREDIT MUTUEL mark. Indeed, given the fact that the Complainant’s trademarks are well-known in the banking services, the Respondent cannot credibly claim to have been unaware of the existence of the previous trademarks (see section 3.2.2 of the WIPO Overview 3.0 ) and previous UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar to a famous or widely known trademark by an unaffiliated entity can by itself create a presumption of bad faith (section 3.1.4 of the WIPO Overview 3.0 ). As to the use of the disputed domain name in bad faith, as previously mentioned, at the time of filing of the Complaint, the disputed domain name resolved to an inactive website. According to section 3.3 of the WIPO Overview 3.0 from the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. More precisely, a passive holding situation constitutes bad faith when associated with other elements such as the degree of notoriety of the mark or the Respondent’s lack of response, as in the present case (see section 3.3 of the WIPO Overview 3.0 ). Moreover, the Panel notes that the disputed domain name email servers are activated, enabling consequently the sending and receipt of potential fraudulent emails. The Panel considers that such use would be damaging to the Complainant’s reputation and interfere with the Complainant’s business activities. Therefore, the Panel finds that the requirement of registration and use in bad faith is satisfied, according to the Policy, paragraph 4(a)(iii). 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 <credịtmutuel.com> (<xn--credtmutuel-879e.com>) be transferred to the Complainant. Elise Dufour Sole Panelist Date: November 12, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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