The Complainant is Européenne de Traitement de L'Information “Euro Information” of Strasbourg, France, represented by MEYER & Partenaires, France.
The Respondent is Janice Liburd Porchester Partners, Inc. of Panama.
The disputed domain name <cybermu.com> (the “Domain Name”) is registered with Moniker Online Services, LLC. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 11, 2010, identifying the respondent as Moniker Privacy Services Inc.
The Center transmitted its request for registrar verification to the Registrar on May 11, 2010. The Registrar replied on May 12, 2010, confirming that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied, that the Domain Name would expire on March 23, 2011, and that it was locked. The Registrar identified the registrant as “Jan Barta porchesterpartners@[...].com” and provided the full contact details held on its WhoIs database in respect of the Domain Name.
By a further email of May 21, 2010, the Registrar informed the Center that an error had been made and that the registrant was “Janice Liburd porchesterpartners@[...].com”. The Registrar also provided revised contact details.
The Center forwarded the information provided by the Registrar as to the identity and contact details of the registrant to the Complainant. The Center invited the Complainant to submit an amended Complaint but did not treat the identification of the Respondent as a formal deficiency as the Complaint was initially filed against the privacy service employed by the Respondent. The Complainant filed an amended Complaint on May 26, 2010, identifying the respondent as Janice Liburd Porchester Partners, Inc.
The Center verified that the amended Complaint satisfied the formal requirements of the 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 28, 2010. The courier recorded that it had successfully delivered the Written Notice to the postal address in the revised contact details provided by the Registrar. In accordance with paragraph 5(a) of the Rules, the due date for Response was June 17, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 18, 2010.
The Center appointed Jonathan Turner as the sole panelist in this matter on June 30, 2010. 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.
Having reviewed the file, the Panel is satisfied that the amended Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
The Complainant is a subsidiary in the French banking and insurance group Credit Mutuel – CIC. The Complainant develops software, maintains computers and networks, manages telemarketing events and is in charge of the group's websites including its online banking services.
The Complainant created a panel of online banking services under the name Cybermut in 1995. The Complainant has registered CYBERMUT and CYBERMUT PAIEMENT as trademarks in France and CYBERMUT P@IEMENT as a Community trademark in the European Union. The Complainant has also registered the domain names <cybermut.com>, <cybermut.net> and <cybermut.org>, which are pointed to its Internet portal.
The Domain Name was registered on March 23, 2010, and resolves to a web page containing links to further web pages which display links to other websites in various categories including insurance, online payments, credit cards and mortgages.
The Complainant contends that it has rights in the mark CYBERMUT and that the Domain Name is confusingly similar to this mark, in that it is a typical example of typosquatting.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant asserts that the Respondent has never been commonly known by the name Cybermu, that it is not related in any way to the Complainant's business, and that it has not been authorised by the Complainant or its group to use or register the Domain Name. The Complainant maintains that the Respondent has been using the Domain Name to confuse and divert Internet users to the Respondent's parking page which contains some links that point to the Complainant's competitors in the banking and financial fields. According to the Complainant such use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the Domain Name.
The Complainant contends that the Domain Name was registered and is being used in bad faith. The Complainant considers that the Respondent must have known of its mark CYBERMUT given its strong reputation and use for online banking and insurance services on the Internet since 1995. The Complainant considers that it is difficult to imagine any good faith purpose for the Respondent's registration of the Domain Name and draws attention to other cases under the UDRP involving the same privacy service where the respondent was found to have acted in bad faith.
The Complainant notes that the Domain Name is pointed to a web page containing links in the field of banking and financial services and concludes that the Respondent registered the Domain Name for the sole purpose of commercial gain by intentionally taking advantage of Internet traffic from Internet users seeking the Complainant's website. The Complainant also relies on this as bad faith use and points out that the Respondent cannot disclaim responsibility on the basis that it does not control the content.
The Complainant requests a decision that the Domain Name be transferred to itself.
As stated above, the Respondent did not reply to the Complainant's contentions.
In accordance with paragraph 4(a) of the UDRP, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
It is convenient to consider these requirements in turn.
The Panel finds on the evidence that the Complainant has registered rights in the mark CYBERMUT.
The Panel is also satisfied that the Domain Name is confusingly similar to this mark, from which it differs only in the omission of the final letter “t” and the addition of the generic top level domain name suffix. As the Complainant observes, this is a typical example of typosquatting. It is well-established that a likelihood of confusion resulting from mistyping can be taken into account.
The first requirement of the UDRP is satisfied.
The Panel does not regard the Respondent's use of the Domain Name for a page of links as constituting use in connection with a bona fide offering of goods or services. Even if it could be said that there is some kind of offering of services (which the Panel doubts), the Panel does not regard it as bona fide. On the contrary, the Panel considers that the Respondent is using the Domain Name in bad faith to divert consumers seeking the Complainant's website through confusion with the Complainant's domain names and mark.
It is clear that the Respondent is not commonly known by the Domain Name or any corresponding name. Nor is the Respondent making legitimate noncommercial or fair use of the Domain Name. On the contrary, the Respondent is using it to divert Internet users for commercial gain through confusion.
There appears to be no other basis on which the Respondent could claim to have any right or legitimate interest in respect of the Domain Name. On the undisputed evidence, the Panel finds that the Respondent does not have any such rights or legitimate interests. The second requirement of the UDRP is satisfied.
The Panel finds on the undisputed evidence that the Respondent is using the Domain Name intentionally to attract Internet users to its website for commercial gain in the form of click-though commissions on sponsored links by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website.
In accordance with paragraph 4(b)(iv) of the UDRP, this constitutes evidence of registration and use of the Domain Name in bad faith. There is no evidence in the file displacing this presumption. In all the circumstances, the Panel finds that the Domain Name was registered and is being used in bad faith. The third requirement of the UDRP is satisfied.
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 <cybermu.com> be transferred to the Complainant.
Dated: July 14, 2010