WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Crédit Industriel et Commercial S.A. v. Web Advertising Corp.
Case No. D2006-1418
1. The Parties
The Complainant is Crédit Industriel et Commercial S.A., Paris, France, represented by Meyer & Partenaires, France.
The Respondent is Web Advertising Corp., Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <filbanq.com> is registered with BelgiumDomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2006. On November 9, 2006, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the domain name at issue. On November 10, 2006, BelgiumDomains, LLC 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”), 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 November 20, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was December 10, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 12, 2006.
The Center appointed Stefan Abel as the sole panelist in this matter on January 9, 2007. 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 banking group having numerous subsidiaries in many countries. The Complainant is the registered owner of several trademarks “FIL BANQUE” and “FILBANQUE” for banking services, in particular French trademark No. 92402297 “FIL BANQUE”, filed for registration on January 22, 1992, for banking services and other services and the French trademark No. 92402299 “FILBANQUE”, filed on the same day for banking and other services. The Complainant is also the reported owner of the domain name registrations <filbanque.tm.fr> created in 1996 and used since 1998 and <filbanque.com> created in 1998 and used since June 2000. The Complainant provides online banking services under the designation “FILBANQUE”.
The Respondent registered the contested domain name on October 11, 2006. The Respondent’s site at the disputed domain names contains a large number of links to numerous commercial websites, in particular links to French websites providing banking services.
The Registrant has been involved as the Respondent in several administrative proceedings before the National Arbitration Forum. All of those proceedings (NAF Case Nos. 771891, 792048, 836506) resulted in the Respondent’s domain names being transferred to the respective complainants.
5. Parties’ Contentions
In summary, the Complainant’s contentions are as follows:
The Complainant owns several trademarks “FILBANQUE” registered for banking services. The Complainant has been using these trademarks as a designation for online banking services for many years.
The disputed domain name is confusingly similar to the Complainant’s trademarks. The missing letters “ue” at the end of the disputed domain name are a mere misspelling of the Complainant’s mark and are not sufficient to distinguish the disputed domain name from the trademarks owned by the Complainant.
The Respondent has no right or legitimate interest in respect of the disputed domain name. The Complainant has never given its consent to the Respondent to use its trademark and the Respondent is in no way related to its business by any past or present agreement. There is no indication that the Respondent is or has been known by the domain name.
The Respondent has engaged in a pattern of conduct registering domain names incorporating third parties’ trademarks and using them for sponsored link websites. The Complainant stresses that, in the present case, the links available under the disputed domain name are links to French websites, so that it is obvious that the Complainant, by using the disputed domain name, seeks to divert for commercial gain internet users and to attract them to the website under the disputed domain. The Respondent therefore has registered the disputed domain name in bad faith and is using is in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Policy provides for a transfer of a domain name if the Complainant establishes each of the following elements set out in paragraph 4(a)(i) to (iii) of the Policy:
- The Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the domain name; and
- the domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out certain circumstances which, in particular, but without limitation, shall be evidence of registration and use of the domain name in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the domain name at issue is confusingly similar to the Complainant’s trademarks. The difference in the ending cannot be heard when pronounced in English or in French. Also visually, the contested domain name is confusingly similar to the Complainant’s trademark, since the disputed domain name is identical with the first seven letters of the Complainant’s trademarks.
B. Rights or Legitimate Interests
The evidence indicates that the Respondent is not licensed or otherwise authorized by the Complainant to use its registered trademark or to register the disputed domain name.
The disputed domain name does not have any apparent descriptive meaning either in English, the language of the Respondent’s country, or in French, the language of the websites the website at the disputed domain name presently provides links for.
The term “filbanq” is not used as a designation for a person, company, services or products on the website at the disputed domain name.
By producing evidence on these circumstances, the Complainant has established a prima facie case that the Respondent lacks rights and legitimate interests in the domain name. The burden of submitting evidence therefore shifts to the Respondent. The Respondent must then by concrete evidence demonstrate its rights or legitimate interests in that domain name in order to refute the prima facie case. The Respondent has made no such showing.
The Panel finds that the Respondent’s default in refuting the prima facie case made by the Complainant is sufficient to establish this element of the Policy. It as an impossible task for the Complainant to prove a negative that is primarily within the knowledge of the Respondent, such as the lack of rights or legitimate interests in the domain name. Producing evidence that the Respondent prima facie has no rights or legitimate interests in the domain name must therefore be regarded as sufficient to establish the requirement of paragraph 4(a)(ii) if the Respondent fails to rebut the prima facie case. This finding is consistent with the consensus in previous Panel decisions (see e.g. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
C. Registered and Used in Bad Faith
The Panel finds that the Complainant has established this element in accordance with paragraph 4(b)(iv) of the Policy for the following reasons:
The Panel finds that, by using the domain name for a set of links to commercial French websites in the banking business, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with the Complainant’s “FILBANQUE” trademarks as to source, sponsorship and affiliation of the website for the following reasons: The domain name represents an abbreviated and misspelled version of the Complainant’s trademarks sounding identical to the Complainant’s trademarks when pronounced in French or English. In addition to that, the Respondent’s website provides primarily links to other websites in French language providing banking services. Internet users are therefore likely to get the idea that the Respondent’s site at the disputed domain name is an official site of the Complainant sponsored by the Complainant or affiliated with the Complainant. Such likelihood of confusion will in all likelihood attract more customers to the site at the disputed domain name resulting in commercial gain as the Respondent’s site provides links to numerous commercial websites.
The Panel finds that the Respondent acted intentionally. It is not conceivable to the Panel that the Respondent could have registered the disputed domain name without having the Complainant’s “FILBANQUE” trademark in mind. The Respondent’s intention to use the disputed domain name as a reference to the Complainant and its trademarks is obvious considering that no rights or legitimate interests in using the disputed domain name are apparent and considering that the Complainant registered its trademarks years before the registration of the disputed domain name. The Complainant also apparently registered its corresponding domain names years before the registration of the disputed domain name, and had been using for years the term “FILBANQUE” as a designation for its online banking services.
In addition, the Panel notes that the Respondent has apparently been found in several other administrative proceedings to have registered and used domain names in bad faith.
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 be transferred to the Complainant.
Dated: January 23, 2007