WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Confédération Nationale du Crédit Mutuel v. Moniker Privacy Services / Janice Liburd
Case No. D2011-0556
1. The Parties
The Complainant is Confédération Nationale du Crédit Mutuel of Paris, France, represented by Meyer & Partenaires, France.
The Respondent is Moniker Privacy Services of Pompano Beach, Florida, United States of America / Janice Liburd of Panama, Panama.
2. The Domain Name and Registrar
The disputed domain name <creditimutuel.com> (“the Disputed Domain Name”) is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2011. On March 28, 2011 and April 1, 2011, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the Disputed Domain Name and a reminder. On April 4, 2011, Moniker Online Services, LLC transmitted by email to the Center its verification response, disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 5, 2011, providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 8, 2011.
The Center verified that the Complaint together with the amended 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 the Respondent of the Complaint, and the proceedings commenced on April 12, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 2, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 3, 2011.
The Center appointed Jacques de Werra as the sole panelist in this matter on May 12, 2011. 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 the second most important French banking and insurance service group providing services to approximately 12 million clients.
The Complainant operates a webportal at “www.creditmutuel.com”. The Complainant is the owner of numerous trademarks consisting of or including the terms “Credit Mutuel” in France and in other countries including the following trademarks (“the Trademark”):
French Trademark No. 1475940 of July 8, 1988 for the mark CREDIT MUTUEL in classes 35 and 36;
International Trademark No. 570182 of May 17, 1991 for the mark CREDIT MUTUEL in classes 16, 35,36, 38, and 41.
The Disputed Domain Name was registered on February 11, 2011. It is used by the Respondent in connection with a domain name parking service offering links pointing to various commercial services including those offered by competitors of the Complainant in the banking and financial industry.
5. Parties’ Contentions
The Complainant first contends that the Disputed Domain Name is confusingly similar to the Trademark. The Complainant states that the gTLD suffix “.com” shall not be taken into account as it is a technical and necessary part of the domain name with no distinguishing feature nor legal significance and that the Disputed Domain Name incorporates the Complainant’s Trademark to which the letter “i” has been added whereby the addition of this single letter shall be ignored in assessing the question of identity or confusing similarity. The addition of this letter further constitutes a case of typosquatting.
The Complainant further alleges that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name given that the Respondent is not related to the Complainant, the Respondent is not an agent of the Complainant, the Complainant never granted the Respondent any authorization or license to use or to apply for the registration of the Disputed Domain Name. In addition, the Disputed Domain Name is used in connection to a parking webpage which contains sponsored links, some of these pointing to the Complainant’s competitors in the banking and financial industry.
The Complainant finally claims that the Respondent registered and uses the Disputed Domain Name in bad faith given that the Respondent could not have ignored the Complainant’s reputation and its well-known trademark in the field of banking and finance at the time the Respondent registered the Disputed Domain Name and that the choice of words composing the Disputed Domain Name cannot be the result of a random choice but rather demonstrates the Respondent’s knowledge of the Complainant and of its activities. The Complainant further claims that the Respondent is using the Disputed Domain Name in order to divert Internet users to a parking webpage containing hyperlinks, some of them directing to information related to the Complainant’s competitors in the field of banking, financial and insurance services. These hyperlinks are designed to generate revenue for the Respondent through a “pay-per-click” domain name parking system. As a result, by registering and using the Disputed Domain Name, the Respondent has intentionally attempted to attract for commercial gain Internet users to a parking webpage at the Disputed Domain Name by creating a likelihood of confusion with the Complainant’s Trademark.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove to the Panel that the following three circumstances are cumulatively met in order to obtain the transfer of the Disputed Domain Name:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent does not hold rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used by the Respondent in bad faith.
A. Identical or Confusingly Similar
Two elements must be established under paragraph 4(a)(i), namely that the Complainant has rights in a trademark and that the Disputed Domain Name is identical or confusingly similar to the Complainant’s trademark.
Regarding the first element, the Complainant has duly established its rights in the trademark in France and in other countries. Regarding the second element, the Panel holds that the Disputed Domain Name is confusingly similar to the trademark given that the only difference consists in the addition of the letter “i” between the terms “credit” and “mutuel” which cannot avoid a finding of confusing similarity. The addition of this single letter rather leads to think that it is a typosquatting case. See Société Nationale des Chemins de Fer Français - SNCF v. Damian Miller / Miller Inc., WIPO Case No. D2009-0891 and WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.1.
Accordingly, the Panel finds that the first element of the Policy is established, and that the Complainant has proven that the Disputed Domain Name is confusingly similar to the Trademark, pursuant to paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists the ways that a respondent may demonstrate rights or legitimate interests in a domain name:
(i) before any notice of the dispute, respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) respondent (as an individual, business or other organization) has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Policy places the burden on a complainant to establish the absence of a respondent’s rights or legitimate interests in the disputed domain name. Because of the inherent difficulties in proving a negative fact, the consensus view is that the complainant need only put forward a prima facie case that the respondent lacks rights or legitimate interests. The burden then shifts to the respondent to rebut that prima facie case. See World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306; and WIPO Overview 2.0, paragraph 2.1.
In this case, the Panel finds that the Complainant has provided a prima facie showing that the Respondent has no rights or legitimate interests in the Disputed Domain Name. Indeed, the Complainant alleges that it has no relationship with the Respondent and that it has not granted the Respondent any right to register or use the Trademark or any domain name referring to the Trademark. Thus, the burden shifts to the Respondent.
The Respondent failed to submit any response. The silence of the Respondent might support a finding, based on other relevant circumstances, that it has no rights or legitimate interests in respect of the Disputed Domain Name. See Confédération Nationale du Crédit Mutuel v. Joanna Rosen, WIPO Case No. D2010-1348.
For these reasons, the Panel finds that the second element of the Policy is established, and that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name, pursuant to paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel first acknowledges that the Complainant is the owner of the Trademark which is distinctive and which has been used for decades. Therefore, the Panel can validly infer that the Respondent had or should have had knowledge of the Complainant’s Trademark and business at the time when it registered the Disputed Domain Name as it incorporates the Complainant’s Trademark in its entirety with the mere addition of the letter “i” (which has no legal significance to the extent that this addition clearly appears as a typosquatting case).
Paragraph 4(b)(iv) of the Policy lists one of the typical situations which, if found, shall be evidence of the registration and use of a domain name in bad faith:
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.”
From the records of the file, it appears that the Respondent is using the Disputed Domain Name for a web portal providing sponsored links for various services, including banking and financial services provided by competitors of the Complainant. It can be considered that the Respondent has set up this system in the expectation of some financial gain through a pay-per-click or click-through system.
Therefore, the circumstances of this case lead the Panel to consider that the Respondent was aware of the Complainant’s Trademark and the corresponding services and thus registered the Disputed Domain Name and uses it in bad faith, in order to attract Internet users by creating a likelihood of confusion with the Complainant's Trademark for the Respondent’s commercial gain. See, by analogy, Confédération Nationale du Crédit Mutuel, supra.
In addition, the record shows that the Respondent Janice Liburd has engaged in a pattern of registering domain names that bear striking resemblance to well-known marks, whereby such a pattern of conduct is expressly forbidden by paragraph 4(b)(ii) of the Policy. This pattern of conduct clearly demonstrates bad faith on the part of the Respondent. See, among others, Société Air France v. Registrant : Janice Liburd / Registrant : Moniker Privacy Services, WIPO Case No. D2010-2244; and Aktiebolaget Electrolux (“AB Electrolux”) v. Registrant : Janice Liburd/Moniker Privacy Services, WIPO Case No. D2010-2064.
For all these reasons, the Panel finds that the third element of the Policy is established, and that the Disputed Domain Name was registered and is being used in bad faith by the Respondent, pursuant to paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <creditimutuel.com> be transferred to the Complainant.
Jacques de Werra
Dated: May 25, 2011