The Complainant is Confédération Nationale du Crédit Mutuel of Paris, France, represented by MEYER & Partenaires, France.
The Respondent is Nicolas Pete of Queensland, Australia.
The disputed domain name <creditmutuel.bz> is registered with CSL Computer Service Langenbach GmbH dba Joker.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2009. On May 8, 2009, the Center transmitted by email to CSL Computer Service Langenbach GmbH dba Joker.com a request for registrar verification in connection with the disputed domain name. On May 12, 2009 CSL Computer Service Langenbach GmbH dba Joker.com 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 20, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was June 11, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 12, 2009.
The Center appointed Brigitte Joppich as the sole panelist in this matter on June 23, 2009. 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 paragraph 7 of the Rules.
The Complainant is the central body of the Crédit Mutuel Banking Group, the second largest French banking and insurance service group, consisting of a network of 3,100 offices in France managed through 18 regional banks and providing services to approximately 14 million clients. The Complainant operates online services at <creditmutuel.com>, is promoting its business activities also at <creditmutuel.eu> and <creditmutuel.mobi>, and through a subsidiary owns further domain names including the words CREDIT and MUTUEL.
The Complainant owns numerous CREDIT MUTUEL trademarks, including:
- French trademark No. 1475940 “CREDIT MUTUEL” and design registered on July 8, 1988 in classes 35 and 36;
- French trademark No. 1646012 “CREDIT MUTUEL” and design registered on November 20, 1990 in classes 16, 35, 36, 38 and 41; and
- International Registration No. 570182 “CREDIT MUTUEL” and design registered on May 17, 1991 in classes 16, 35, 36, 38 and 41
(the “CREDIT MUTUEL Marks”).
The disputed domain name was registered on April 15, 2009. It is currently not used in connection with an active website.
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is given in the present case:
(1) The disputed domain name is identical to the Complainant's CREDIT MUTUEL Marks as it incorporates the Complainant's famous marks in their entirety, while the suffix “.bz” standing for Belize must not be taken into account.
(2) The Respondent has no legitimate rights or interests to use the name CREDIT MUTUEL as the Respondent is not related to the Complainant's business in any way and is not known under the denomination CREDIT MUTUEL. The Complainant has not licensed or otherwise authorized the Respondent to use its trademarks or to apply for any domain name incorporating such trademarks. The Respondent has therefore no rights or legitimate interests with regard to the disputed domain name.
(3) The Complainant finally contends that the domain name was registered and is being used in bad faith. The Complainant states that the Respondent knew the CREDIT MUTUEL Marks at the time it registered the disputed domain name as these are well-known all over the world in the field of banking and financial services. The domain name is supposed to have been registered primarily for the purpose of diverting the Complainant's clients to a fake website (confusingly similar to the Complainant's website) in order to misappropriate funds in a phishing scheme, attempting to fraudulently obtain credit cards details and other personal information from them.
The Respondent did not reply to the Complainant's contentions.
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the domain name is identical or confusingly similar to the Complainant's trademark; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
The disputed domain name consists of the Complainant's distinctive CREDIT MUTUEL Marks in which the Complainant has exclusive trademark rights. The specific top level domain name “.bz” is not an element of distinctiveness that can be taken into consideration when evaluating the identity and similarity of the complainant's trademark and the disputed domain name (see Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374; Teradyne, Inc v. 4Tel Technology, WIPO Case No. D2000-0026).
Therefore, the Panel finds that the disputed domain name is identical to the Complainant's trademark and that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by a respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to the respondent of the dispute, the use by the respondent 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) 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 customers or to tarnish the trademark or service mark at issue.
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the disputed domain name, it is the consensus view among panelists that a complainant has to initially make only a prima facie case that the requirements of paragraph 4(a)(ii) of the Policy are fulfilled. Afterwards, the burden of proving that the respondent has rights or legitimate interests in the disputed domain name will then shift to the respondent.
The Complainant has asserted that the Respondent neither uses the domain name or any name corresponding to the disputed domain name in connection with a bona fide offering of goods or services nor is commonly known by the disputed domain name, that the Respondent is not making any legitimate non-commercial or fair use of the disputed domain name, and that the Respondent therefore cannot have any rights or legitimate interests in the domain name. The Complainant has therefore fulfilled its obligations under paragraph 4(a)(ii) of the Policy.
The Respondent did not deny these assertions in any way.
Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the domain name under paragraphs 4(a)(ii) and 4(c) of the Policy.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which are evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.:
(i) circumstances indicating that the respondent has registered or 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 the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent's website or location or of a product or service on its website or location.
The circumstances mentioned in paragraph 4(b) of the Policy are not exclusive, while the two elements of the third requirement of the Policy are cumulative conditions; the Complainant must show that the domain name was registered in bad faith and is being used in bad faith. This point is clear from the wording of the Policy and has been confirmed ever since, Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (see also Telstra Corporation Limited v. Adult Web Development and Telstraexposed, WIPO Case No. D2002-0952; Telstra Corporation Ltd v. David Whittle, WIPO Case No. D2001-0434; Prada S.A. v. Mr. Chuan Sheng Wang, WIPO Case No. D2003-0758).
As to bad faith registration, it is hardly conceivable that the Respondent registered the disputed domain name without knowledge of the Complainant's CREDIT MUTUEL Marks for the following reasons: the Complainant has been well-known under this name for many decades and the Complainant's business name and mark CREDIT MUTUEL, consisting of the French words for “credit” and “mutual”, constitutes a most unlikely choice of a business name in Australia (where the Respondent resides and where English is spoken). This finding is supported by the fact that the Respondent originally used the disputed domain name for a website confusingly similar to the Complainant's website. The Panel is therefore satisfied that the Respondent registered the disputed domain name with full knowledge of the Complainant's marks and thus in bad faith under paragraph 4(a)(iii) of the Policy.
As to bad faith use, the Panel finds it more likely than not that the disputed domain name was used by the Respondent in an intentional attempt to benefit from the goodwill of the Complainant's trademark for financial gain by creating a slavish copy of the Complainant's website with the likely purpose of collecting the data of people reaching such website (so-called “phishing”, see Banca Intesa S.p.A. v. Moshe Tal, WIPO Case No. D2006-0228; Grupo Financiero Inbursa, S.A. de C.V. v. inbuirsa, WIPO Case No. D2006-0614; Australia and New Zealand Banking Group Limited v. Bashar Ltd, WIPO Case No. D2007-0031; Confédération Nationale du Crédit Mutuel and Crédit Industriel et Commercial S.A. v. Trabaja Jayam, Zeb Fi Tarmatek, WIPO Case No. DLC2009-0002).
Therefore, the Respondent has also been using the disputed domain name in bad faith and the Complainant has thus satisfied the requirements of paragraph 4(a)(iii) of the Policy as well.
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 <creditmutuel.bz> be transferred to the Complainant.
Dated: June 25, 2009