WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Crédit Industriel et Commercial S.A v. Domain Drop S.A.
Case No. D2007-0532
1. The Parties
The Complainant is Crédit Industriel et Commercial S.A., Paris, France, represented by MEYER & Partenaires, France.
The Respondent is Domain Drop S.A., Charlestown, West Indies, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <filbangue.com> is registered with DomainDoorman, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 5, 2007. On April 10, 2007, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On April 11, 2007, DomainDoorman, 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 April 17, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 7, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 8, 2007.
The Center appointed Anne-Virginie La Spada-Gaide as the sole panelist in this matter on May 22, 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.
The language of the proceedings is English.
4. Factual Background
The Complainant, Crédit Industriel et Commercial S.A., is a French banking group, which is active in France and throughout the world via a network of representative bank offices.
As part of its banking business, the Complainant operates an online banking service under the mark FILBANQUE. This service enables clients to look at their bank accounts and to proceed with online transactions.
The Complainant owns the domain names <filbanque.tm.fr> since April 24, 1996, and <filbanque.com> since June 5, 1998.
The Complainant is also the owner of the following trademark registrations consisting of the term FILBANQUE:
- a French registration N° 92402299 of January 22, 1992, in classes 35, 26 and 42 for the word trademark FILBANQUE;
- a French registration N° 92402297 of January 22, 1992, in classes 35, 36 and 42 for the word trademark FIL BANQUE;
- a French registration N° 95553426 January 13, 1995, in classes 35, 36 and 38 for the trademark FILBANQUE & design;
- a French trademark registration N° 95553427 of January 13, 1995, in classes 35, 36 and 38 for the trademark FILBANQUE & design;
- a French trademark registration N° 012126064 of October 15, 2001, in classes 9, 16, 28, 41 and 42 for the word trademark FILBANQUE;
- a French trademark registration N° 013130040 of November 7, 2001, in classes 9, 16, 28, 35, 36, 38, 41 and 42 for the trademark FILBANQUE & design.
The disputed domain name <filbangue.com> was registered on June 19, 2006, in the name of Domain Drop S.A.
According to the Whois search results, Domain Drop S.A. has an address in Charleston, West Indies, Saint Kitts and Nevis.
The Complainant has submitted a printout showing that the disputed domain name is connected to a website which displays a list of links to other websites, all related to banking services and financial products, such as “www.ingdirect.fr”, “www.groupama.fr” or “www.bnpparibas.net”. The website is in French.
The Panel notes that the Respondent is associated with other infringing domain name registrations and evidence of this fact was provided in the Complaint.
The Respondent did not file any response and was declared in default.
5. Parties’ Contentions
The Complainant, a French banking group with representatives all over the world, sets forth that the term FILBANQUE is used to designate its online banking service and that such service is available on each regional bank’s website. The term FILBANQUE is also used in two domain names registered by the Complainant. Finally, the Complainant owns several trademarks consisting of the term FILBANQUE. Therefore, FILBANQUE is a trade name and a trademark used by the Complainant for its online banking activities.
The Complainant claims that the term FILBANGUE is similar to FILBANQUE because it differs from it only by one letter, a “G” instead of a “Q”. The Complainant cites prior cases in which the misspelling phenomenon has been defined by the Panel as creating a likelihood of confusion (Xerox Corp. v. Stonybrook Investiments Ltd, WIPO Case No. D2001-0380; Deutsche Bank Aktiengesellschaft. v. New York TV Tickets Inc., WIPO Case No. D2001-1314). Moreover, the letters G and Q are placed almost side by side on an Azerty computer keyboard and both letters are very similar visually. According to the Complainant, the term FILBANGUE has no meaning. The Complainant finally claims that the terms FILBANGUE and FILBANQUE are similar in sound and visual appearance.
Secondly, the Complainant claims that the Respondent has no use or legitimate interests in the domain name. The Respondent is not affiliated in any way with the Complainant and the Complainant has never given any license or consent to use its mark. The Respondent is not using the domain name in connection with a bona fide offer of goods and services nor for legitimate non commercial use or fair use. The Respondent’s site has no function other than to divert users to other websites, most of which offer banking services and financial products and/or services provided by the Complainant’s competitors. The Respondent did not file any response to show that it had rights or legitimate interests in the disputed domain name.
Thirdly, the Complainant claims that the Respondent has registered and used the domain name in bad faith because the Respondent could not have ignored the trademark FILBANQUE at the time it applied for registration. The Complainant cites a prior decision involving its mark FILBANQUE in which the Panel confirmed that the Complainant provided sufficient evidence of the fame of the mark FILBANQUE and the banking services rendered under this name to its clients all over the world. In this decision, the Panel considered that the Respondent, in all likelihood, could not be unaware of the service FILBANQUE and the trademarks FILBANQUE and their direct relation to the Complainant (Crédit Industriel et Commercial S.A. v. WhoisGuard Protected, WIPO Case No. D2006-1162). Moreover, the Complainant contends that the term “filbangue” does not have any meaning and could not have been created without knowing the Complainant’s trademarks FILBANQUE.
In consequence, the Complainant contends, the misspelling aims at creating a likelihood of confusion between the Complainant’s trademarks FILBANQUE and the Respondent’s domain name <filbangue.com>. This is evidence of bad faith according to paragraph 4 (b) (iv) of the Policy.
The Complainant claims that by registering and using the domain name, the Respondent has intentionally attempted to attract, for commercial game, Internet users to a parking webpage by creating a likelihood of confusion with the Complainant’s trademarks. The links on the Respondent’s website are exclusively in French and are related to the Complainant’s competitors’ websites. No doubt that the Respondent did it on purpose to attract consumers to this parking webpage.
Finally, relying on numerous prior UDRP cases involving the Respondent, the Complainant further sets forth that the Respondent is a repeat offender who has engaged into a pattern of registering domain names which are identical or confusingly similar to the trademarks of others (Kiloutou v. Domain Drop S.A., WIPO Case No. D2006-1105; Prepadom v. Domain Drop S.A. (PREPADOM-COM-DOM), WIPO Case No. D2006-0917; Ltd Commodities LLC v. Domain Drop S.A., NAF FA060930809759; Starent Network Corporation v. Domain Drop S.A., NAF FA061130848901; Enterprise Rent-A-Car Company v. Domain Drop S.A., NAF FA0612000862698; FHG Holdings Pty Ltd d/b/a/ Click Business Cards v. Domibot, WIPO Case No. D2006-0669).
The Complainant consequently requests that the domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, a complainant must assert and prove each of the following:
(i) the domain name registered by the respondent 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 domain name; and
(iii) the domain name registered by the respondent has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has established that it owns rights in the mark FILBANQUE in several classes, notably in class 36, in France. The relevant registrations were secured well before the Respondent registered the domain name.
The disputed domain name differs only by one letter from the Complainant’s trademarks, the letter “g” being replaced by a “q”.
Visually, the letters “q” and “g” are similar, especially when written in lowercase as in domain names. Moreover, their position in the term “filbanque”, respectively “filbangue” is not conspicuous, and an Internet user exercising an average level of attention could easily mistake one term for the other. Phonetically, the sounds “que” and “gue” are also close, at least in French, which is the language of the country where the Complainant is established and of the website operated by the Respondent under the domain name. Finally, neither “filbanque” nor “filbangue” have an obvious meaning that could distinguish one from the other.
The disputed domain name can be described as a misspelling of the Complainant’s trademarks. Deliberate misspellings of protected trademarks are usually considered by administrative panels as being confusingly similar to such trademarks (see Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441, in which the Panel decided that “a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive” and Crédit Industriel et Commercial en abrégé CIC v. Caribbean Online International Ltd, WIPO Case No. D2007-0423, where the Panel held that “the alterations from the trademark are merely designed to allow the Respondent to take advantage of typographical slips which an Internet user commonly makes when in fact intending to access a website of the Complainant”).
The Panel accordingly finds the disputed domain name to be confusingly similar to the trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant represents that it has never authorized the Respondent to use its mark in any manner.
The domain name does not correspond to the Respondent’s name.
In view of the available excerpts of the website to which the domain name is connected, the Respondent does not appear to be making a legitimate non commercial or otherwise fair use of the domain name. Nor does the Respondent appear to be using the domain name in relation with a bona fide offering of goods or services. Indeed, nothing indicates that the Respondent itself might be in the banking or financial business. The Respondent only appears to provide links leading to websites unrelated to the Respondent where banking services or financial products are offered.
According to the Rules, paragraph 14(b), the Panel may draw from the Respondent’s default the inferences that it considers appropriate (see Société Air France v. Domain Active Pty. Ltd, WIPO Case No. D2004-0993 (“A respondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an Administrative Panel accepting as true the assertions of a Complainant which are not unreasonable and leaves the Respondent open to the legitimate inferences which flow from the information provided by a Complainant”).
As the Respondent has elected not to submit any response to the Complaint, the Panel infers from the Respondent’s silence and from the evidence submitted with the Complaint that the Respondent can claim no right or legitimate interest in respect of the domain name.
C. Registered and Used in Bad Faith
It is obvious to the Panel that the Respondent knew of the Complainant’s mark and did not reproduce it in the domain name by coincidence. Indeed, the terms “filbanque” and “filbangue” do not have any particular meaning. The choice of the term “filbangue” to designate a website offering links in the banking and financial field, where the Complainant is active, shows that the Respondent was aware of the Complainant’s business.
Moreover, it can be inferred from the evidence that the Respondent tried to attract consumers seeking the Complainant’s official website to a website from which they could be diverted to on-line locations without any relation to the Complainant. In other words, the Respondent attempted to misleadingly divert Internet traffic that was initially intended for the Complainant. It can be reasonably assumed that the Respondent’s purpose was to profit from the traffic diverted from the Complainant’s website by means of paid for links or by collecting click-through fees (see Microsoft Corporation v. Mindkind, WIPO Case No. D2001-0193; Finaxa SA v. James Lee, WIPO Case No. D2002-1098; Crédit Industriel et Commecial S.A. v. WhoisGuard Protected , WIPO Case No. D2006-1162).
This behavior amounts to registration and use of the domain name in bad faith in accordance with paragraph 4(b)(iv) of the Policy. According to this provision, a domain name is used and registered in bad faith when the Respondent intentionally attempts to attract Internet users for commercial gain to its website or other on-line locations by creating a likelihood of confusion with the Complainant’s mark as to the sponsorship or endorsement of such websites.
Finally, the Complainant cites several relevant prior cases involving the Respondent under one or more of its aliases (for example DOMIBOT). In each case, the panels found that the Respondent had used and registered the disputed domain names in bad faith and ordered that they be transferred to the Complainant (see for example Kiloutou v. Domain Drop S.A., WIPO Case No. D2006-1105; Prepadom v. Domain Drop S.A. (PREPADOM-COM-DOM), WIPO Case No. D2006-0917; Ltd Commodities LLC v. Domain Drop S.A., NAF FA060930809759; Starent Network Corporation v. Domain Drop S.A., NAF FA061130848901; Enterprise Rent-A-Car Company v. Domain Drop S.A., NAF FA0612000862698; FHG Holdings Pty Ltd d/b/a/ Click Business Cards v. Domibot, WIPO Case No. D2006-0669). This supports the Panel’s belief that the Respondent was aware of the Complainant’s mark and purposely registered and used a confusingly similar domain name to divert traffic from the Complainant’s website.
In view of the above, the Panel finds that the domain name was registered and used 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 <filbangue.com> be transferred to the Complainant.
Anne-Virginie La Spada-Gaide
Dated: June 5, 2007