WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Crédit Agricole S.A. v. Magdalena Bialowas
Case No. D2011-1739
1. The Parties
The Complainant is Crédit Agricole S.A. of Paris, France, represented by Sodema Conseils S.A., France.
The Respondent is Magdalena Bialowas of Darlowo, Poland.
2. The Domain Names and Registrar
The disputed domain names <credit-agrigole.com> and <creditagrigole.com> (the “Domain Names”) are registered with NetArt Registrar Sp. z o.o. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 13, 2011. The Complaint did not specify the name and contact details of the Respondent, and was not signed. On October 13, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On October 14, 2011, the Registrar transmitted by email to the Center its verification response providing the name of the registrant and her contact details. On October 14, 2011, the Center notified the name and contact details of the registrant of the Domain Names to the Complainant, and invited the latter to submit an amended and signed Complaint within five days from the notification. On October 17, 2011, the Complainant submitted the amended and signed Complaint. On October 17, 2011, the Center notified the Parties that the language of the registration agreement for the Domain Names was Polish, and that the Complainant should either submit the Complaint in Polish or request that the proceeding take place in English. On October 19, 2011, the Complainant filed a Polish translation of the Complaint with the Center.
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 the Respondent of the Complaint, and the proceedings commenced on October 21, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 10, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 18, 2011.
The Center appointed Assen Alexiev as the sole panelist in this matter on November 18, 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.
In relation to the language of the proceeding, the Panel notes that the registration agreement for the Domain Names is in Polish. Therefore, the language of the present administrative proceeding should normally be Polish. At the same time, the websites linked to the Domain Names have content in both English and Polish. The Complainant has submitted its Complaint in both English and Polish, and the Respondent was given the prescribed period to prepare and submit its Response, but decided not to do so or indeed to take any position in this proceeding. Taking this into account, the Panel is satisfied that the Parties would not object to the proceedings being held in either English or Polish. Therefore, and in exercise of its powers under the Rules, paragraph 11, the Panel decides that the language of the proceedings be English, while taking into account all submissions and evidence available in either English or Polish.
4. Factual Background
The Complainant is a French banking and insurance service group. It is active in the European Union, including in Poland through its local subsidiary Crédit Agricole Corporate and Investment Bank S.A.
The Complainant is the holder of a number of trademarks consisting of, or including CREDIT AGRICOLE in various countries throughout the world and notably Poland, including the Community trademark CREDIT AGRICOLE with Reg. No. 006456974, registered on October 23, 2008 for goods and services in international classes 9, 16, 35, 36, 38, and 42.
The Complainant is the owner of the active domain names <credit‐agricole.com>, registered on December 31, 1999, and <creditagricole.com>, registered on June 11, 2001. The Complainant is also the owner of the following domain names, registered on April 19, 2002: <credit‐agricole.pl>, <credit‐agricole.com.pl>, <creditagricole.pl>, and <creditagricole.com.pl>, which all direct to the Polish web site of the Complainant.
5. Parties’ Contentions
According to the Complainant, the Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights. They are confusingly similar to the trademark CREDIT AGRICOLE as the replacement of the letter “c” by the letter “g” in the word “agrigole” does not affect the pronunciation of the Domain Names, and the public will regard them as equivalent to the trademark CRÉDIT AGRICOLE. The registration of the Domain Names is a typosquatting attempt to benefit from the attractiveness of the trademark CREDIT AGRICOLE based on the probability that a certain number of Internet users will incorrectly type the name of the Complainant. The keys “c” and “g” in the keyboard widely used in Poland are very close to each other.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Names. The Respondent has no intellectual property rights or other rights in the Domain Names. It has not been licensed or otherwise permitted in any way by the Complainant to use the CREDIT AGRICOLE trademarks or any variations of them. The Respondent’s webpage offers links to a website which offers to Internet users the possibility to gain money and to obtain financial benefits. The use by the Respondent of the CREDIT AGRICOLE trademark with a typographical error diverts Internet users who are looking for the Complainant’s services on the Internet to a gambling website. Such actions do not constitute a legitimate, bona fide use and do not confer to the Respondent legitimate interests in the Domain Names.
The Complainant claims that the Domain Names were registered and are being used in bad faith. The Respondent has intentionally attempted to attract Internet users to its website using the fame and goodwill of the CREDIT AGRICOLE trademark by registering and using the Domain Names and trying to take advantage of typographical errors made by Internet users seeking the Complainant’s website. The use of the widely known CREDIT AGRICOLE trademark for inducing consumers to spend money on a gambling website in itself represents bad faith, as it would be considered a case of unfair competition under the legal order of most countries. The association of CREDIT AGRICOLE with the activity of gambling is detrimental to the public image of the Complainant, especially in Poland. The Domain Names are so specific that no reason why they were chosen by the Respondent other than to benefit from the typographical error is conceivable. This is a typical case of “parasitic competition” - an infringement of the basic principle that no one can reap where he has not sown, done without any sizeable investment of its own by the Respondent.
The Complainant requests the transfer of the Domain Names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the Domain Names:
(i) That the Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) That the Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) That the Respondent has registered and is using the Domain Names in bad faith.
Pursuant to the Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present his or her case.
In the event of a default, under Rules, paragraph (14)(b): “…the Panel shall draw such inferences therefrom as it considers appropriate.” As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the panel in Viacom International Inc. v. Ir Suryani, WIPO Case No. D2001-1443:
Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. […] In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.
In this administrative proceeding, the Respondent has chosen not to submit a Response. His or her default leads the Panel to conclude that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to make its decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.
A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the word trademark CREDIT AGRICOLE, registered as a Community trademark.
It is a common practice under the Policy to disregard the gTLDs such as the “.com” section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the Domain Name <creditagrigole.com> is its “creditagrigole” section. This combination differs from the Complainant’s trademark by only one letter close to the end of the combination, which makes it difficult to notice the difference, and phonetically the two combinations are almost indistinguishable. The same applies to the Domain Name <credit-agrigole.com>. Here, the two parts “credit” and “agrigole” are visually separated, which makes their combination even more similar to the CREDIT AGRICOLE trademark.
Therefore, the Panel finds that the Domain Names are confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant claims that the Respondent has no rights or legitimate interests in the Domain Names, and provides certain arguments in this regard. Thus, the Complainant establishes a prima facie case under Policy, paragraph 4(a)(ii).
It is well established that once a complainant makes out a prima facie case that the respondent has no rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut the showing by providing evidence to the contrary.
In the present case, the Respondent has chosen not to present to the Panel any allegations or documents in his or her defense despite the burden under the Rules, paragraph 5(b)(i) and 5(b)(ix) or the consequences that a panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any justification for registering or using the Domain Names, he or she could have provided it. In particular, the Respondent has not contended that any of the circumstances described in Policy, paragraph 4(c) — or any other circumstance — is present in his or her favor.
The only information available about the Respondent is the publicly available WhoIs information, provided by the Registrar. The WhoIs information contains no evidence of rights or legitimate interests of the Respondent in the Domain Names, which, as found above, are confusingly similar to the trademark of the Complainant. The Respondent makes no claims for having rights or legitimate interests in respect of the Domain Names and provides no explanation whatsoever for their registration and use. Given the close similarity between the Domain Names and the Complainant’s CREDIT AGRICOLE trademarks and the lack of any conceivable independent meaning of the Domain Names, the Panel is prepared to accept that this is a typosquatting case. Also, as submitted by the Complainant and not denied by the Respondent, the Domain Names have been associated to a gambling website without the consent of the Complainant.
In the Panel’s view, these circumstances could not be regarded as establishing rights and legitimate interests of the Respondent in the Domain Names. Therefore, and in the lack of any evidence or allegations to the contrary, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Names within the meaning of the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
For the purposes of the Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on the holder’s website or location.
In the present case, the Domain Names are confusingly similar to the Complainant’s CREDIT AGRICOLE trademarks and represent a typical example of typosquatting. This is sufficient for the Panel to decide that at the time of the registration of the Domain Names, the Respondent must have been aware of the Complainant and of its goodwill. At the same time, the website associated to the Domain Names is linked to a gambling website. Taking this combination of circumstances into account, and due to the lack of any contrary evidence or even allegation of any actual or contemplated good faith use of the Domain Names, the Panel is prepared to accept that the Respondent has registered and used the Domain Names in bad faith by intentionally attempting to attract, for commercial gain, Internet users to the website linked to the Domain Names by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of this website.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names <credit-agrigole.com> and <creditagrigole.com> be transferred to the Complainant.
Dated: December 5, 2011