Complainant is Confédération Nationale du Crédit Mutuel of Paris, France, represented by MEYER & Partenaires, France (“Complainant”).
Respondent is Bryna Cytrynbaum of Evanston, Ilinois, United States of America, represented by Hughes Socol Piers Resnick & Dym, United States (“Respondent”).
The disputed domain name <creditmutuel-sn.com> is registered with Tucows Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2010. On February 5, 2010, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On February 5, 2010, Tucows Inc. transmitted by email to the Center its verification response confirming that 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 10, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 2, 2010. The Response was filed with the Center on February 22, 2010.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on March 12, 2010. 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 disputed domain name was registered on December 21, 2009. As at February 10, 2010 it did not resolve to a website and attempted e-mail delivery of a copy of the Complaint to “postmaster” at the disputed domain name failed on February 15, 2010.
Complainant is a large French corporation providing services in the fields of banking and finance with branches throughout the world including the United Kingdom of Great Britain and Northern Ireland, the United States and a joint venture in Senegal. It is the registered owner of several French and International trademarks consisting of or including the words “Credit Mutuel”. It operates a website at “www.creditmutuel.com” and also at “www.cms.sn” and is the owner of domain names containing the term “creditmutuel” in the “.com”, “.fr”, “.mobi”, “.eu” domain spaces.
Respondent, Bryna Cytrynbaum, is listed in the WhoIs records for the disputed domain name as the registrant and the administrative contact. Ms. Cytrynbaum is the Executive Director of the Jewish Reconstructionist Congregation in Evanston, Illinois, United States. In this decision she is referred to as Respondent but for reasons set out below it appears she is not the true registrant of the domain name. It is to be understood therefore that references to Respondent do not reflect any suggestion of misconduct on the part of Ms. Cytrynbaum.
Complainant contends that the disputed domain name is confusingly similar to its trademark and differs from it only by the addition of the country code “sn” (for Senegal) and the gTLD “.com”. Complainant further contends that Respondent has no basis for a claim to rights or legitimate interests in the disputed domain name and asserts that it did not license or otherwise authorize Respondent to use its trademark in the disputed domain name. Complainant cites several prior WIPO UDRP decisions in which the domain name in dispute differed from the complainant's trademark only by the addition of a country code and a TLD denominator – see for example Société Air France v. Air France E-ticket, WIPO Case No. D2005-1148.
Complainant contends that in the light of its strong reputation and the well-known character of its marks, and its developing presence in Senegal, Respondent cannot have made a random association of Complainant's trademark with the “sn” country code and that it is “highly likely that the Respondent has chosen such combination in order to give the disputed domain name a real and concrete meaning for internet users”.
Complainant suspects that the named Respondent is not the true registrant of the disputed domain name and that her identity has been “faked”. Complainant asserts that it has been the victim of phishing and that the purpose of registration of the disputed domain name was probably for the creation of a website for the purpose of phishing.
As to the question of bad faith use Complainant contends that Respondent's passive holding of the disputed domain name amounts to bad faith use, which is damaging to Complainant in that the fact that the site is inactive may reflect adversely on Complainant among persons seeking to deal with its Senegalese affiliate. It repeats its fear that the disputed domain name may be used for the purpose of phishing in view of the apparent usurpation of Respondent's identity.
No formal response was filed, however, on her behalf her attorneys wrote that:
“We represent Ms. Bryna Cytrynbaum of Evanston, Illinois. We have been informed that Ms. Cytrynbaum received a Written Notice concerning the above-identified matter from WIPO by UPS on or about February 13, 2010. She did not receive a copy of the Complaint by email because she has no connection with any of the email addresses listed in the Notice. We requested a copy of the Complaint by emails to your office on February 16 and 17, 2010, and we received copies of the Complaint and annexes today.
In short, it appears that Ms. Cytrynbaum has been the victim of fraudulent activity after someone else apparently used her credit card information, without her knowledge or approval, in connection with registration of the domain name <creditmutuel-sn.com>. Complainant generally acknowledges that fact on pages 8, 14 and 16 of the Complaint.
We respectfully request that you correct your records to disassociate the name of Ms. Cytrynbaum with the above matter.”
Complainant has clearly established that it has rights in the trademark CREDIT MUTUEL. The disputed domain name differs from that trademark only by the addition of a hyphen and the letters “-sn” and the TLD denominator “.com”
The Panel therefore finds that the disputed domain name is confusingly similar to Complainant's trademark.
Respondent makes no claim to any right or legitimate interest in the disputed domain name and specifically asks to be disassociated from the matter. The Panel accepts her assertion that she appears to be the victim of fraudulent activity. The Panel further notes that although the named Respondent has indicated that she is not in control of the domain name nor the email addresses available in the public WhoIs records, the emails sent by the Center to those addresses appear to have been successfully delivered. Therefore, the Panel finds that the entity who has registered and is in control of the disputed domain name has been put on notice of these proceedings and been given ample opportunity to come forward. However, no reply or Response was submitted by such individual to demonstrate its rights or legitimate interests in the disputed domain name or to rebut Complainant's arguments.
The Panel therefore finds that Respondent has no rights or legitimate interests in the disputed domain name.
The Panel accepts Respondent's statement that she has been the victim of fraudulent activity and that the registration of the disputed domain name in her name occurred without her knowledge or approval. That fact alone is sufficient to found a finding of bad faith registration of the disputed domain name by the individual who undertook said actions. The further circumstances surrounding the widespread reputation of Complainant's trademark and its business connection with Senegal lead to the conclusion that the registration of the domain name was done for the purpose of misleading Internet users into the belief that it was connected with Complainant. The inevitable conclusion is that this was done for commercial gain since no other purpose appears likely.
Although there is currently no website linked to the disputed domain name, whilst that domain name remains under the control of the unknown registrant, the potential exists for its activation. Complainant contends that this passive holding amounts to bad faith use.
The Panel agrees. The concept of bad faith use based on passive holding has its origins in the seminal case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (“Telstra”). In that case the learned panelist said, at paragraph 7.9:
“the concept of a domain name ‘being used in bad faith' is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith”.
And at paragraph 7.12 he said:
“The particular circumstances of this case which lead to this conclusion are:
(i) the Complainants trademark has a strong reputation and is widely known, as evidenced by its substantial use in [Australia and in many other countries];
(ii) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name,
(iii) the Respondent has taken active steps to conceal its true identity, by operating under a name that is not a registered business name,
(iv) the Respondent has actively provided, and failed to correct, false contact details, in breach of its registration agreement, and
(v) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant's rights under trademark law.”
Each of the circumstances enumerated by the learned Panelist in Telstra are present, mutatis mutandis, here. Added to that is the probability that the case appears to involve identity fraud.
The Panel therefore finds that the disputed domain name was registered and is being 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 <creditmutuel-sn.com> be transferred to the Complainant.
Desmond J. Ryan AM
Dated: March 25, 2010