WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

CVC Capital Partners Finance Limited v. Registration Private, Domains By Proxy LLC / Tho Hong Hamp

Case No. D2016-1043

1. The Parties

The Complainant is CVC Capital Partners Finance Limited of Jersey, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland, represented by Clifford Chance LLP, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).

The Respondent is Registration Private, Domains By Proxy LLC of Scottsdale, Arizona, United States of America (“United States”) / Tho Hong Hamp of Brussels, Belgium.

2. The Domain Name and Registrar

The disputed domain name <cvcgroups.com> is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 25, 2016. On May 26, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 26, 2016, the Registrar 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 May 30, 2016 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 June 2, 2016.

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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 26, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 27, 2016.

The Center appointed Tobias Zuberbühler as the sole panelist in this matter on July 5, 2016. 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 a subsidiary of CVC Capital Partners (“CVC”), an international private equity firm. Use of the CVC name by the Complainant’s group of companies dates back to 1994 when Capital Investors Europe Limited changed its name to CVC Capital Partners Europe Limited. The Complainant has been operating under the CVC name since 2003.

The Complainant has registered trademarks in many countries, including European Union trademark registrations No. 4789368 for CVC and No. 4789376 for CVC CAPITAL PARTNERS, registered on August 10, 2009 and October 23, 2006, respectively.

The disputed domain name was registered on March 2, 2015. The disputed domain name resolves to a website appearing to advertise the services of “CVC Groups Private Capital.” Additionally, as explained further below, the Complainant has submitted evidence that the Respondent has sent fraudulent emails from addresses connected to the disputed domain name, and that various financial regulators have issued warnings regarding the “www.cvcgroups.com” website.

5. Parties’ Contentions

A. Complainant

In summary, the Complainant contends the following:

The disputed domain name is confusingly similar to the Complainant’s CVC trademarks. The CVC trademark is so well known in respect of financial services around the world that it is inevitable that the public will believe that the disputed domain name is somehow connected with CVC. In addition, individuals identifying themselves as representatives of the Complainant have actively attempted to mislead members of the public into believing that the disputed domain name is associated with CVC.

There is no evidence of use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with any bona fide offering of goods or services. Instead, the evidence demonstrates the misuse of the disputed domain name and its false association with the Complainant.

The Respondent registered the disputed domain name on March 2, 2015. The Complainant’s first knowledge of the disputed domain name was in November 2015, when the Complainant received a report that a French individual had been contacted by an individual claiming to be associated with CVC. Having been the victim of an earlier instance of fraud, this individual had been contacted by a “Mr Duport” who claimed to work for CVC and claimed the ability to negotiate with the earlier fraudster’s bank in order to recover the victim’s losses. Mr Duport requested that proof of the previous transfer and a copy of the victim’s identity card be sent to a “cvcgroups.com” email address. The individual contacted a CVC French entity to validate that the email address was in fact associated with CVC.

Thereafter, the French Financial Markets Regulator (AMF) issued a press release on February 4, 2016 identifying “cvcgroups.com” as offering investments on its unregulated foreign exchange (Forex) market when not authorised to do so. Given the substantial reputation and awareness of CVC, the Respondent’s use of CVC derivative branding on the “www.cvcgroups.com” website and reference to CVC in its communications with individuals, are calculated to lead the relevant public to erroneously believe that its services emanate from or are connected with the Complainant or other members of CVC.

Separately, CVC’s Italian business was notified by at least five members of the public that an individual claiming to represent “CVC Groups” had contacted them offering investment opportunities. The caller purported to be from a subsidiary of CVC and suggested to at least one recipient that it check a Financial Conduct Authority (FCA) authorisation number displayed on the “www.cvcgroups.com” website to verify this information. The recipient found this number to be the actual FCA authorisation number of CVC Capital Partners Limited, a London-based member of CVC.

Furthermore, the Jersey Financial Services Commission issued a public statement on April 18, 2016 that “CVC Groups Private Capital” and “CVC Ltd”, operating the disputed domain name, were falsely purporting to be carrying on a financial service business in Jersey when not authorised to do so pursuant to the provisions of the Financial Services Law. The Jersey Financial Services Commission stated that Respondent appeared to be using the words “CVC” and “CVC Groups” to falsely claim to be connected to CVC and CVC funds and it would appear that the “www.cvcgroups.com” website displays signs of being set up for a fraudulent purpose.

The use of CVC in conjunction with the website “www.cvcgroups.com” infringes the Complainant’s rights in the CVC name and trademark. The website was not authorised by the Complainant, but is clearly being used to mislead the public by implying a connection with CVC, its services and funds. The use of the disputed domain name as well as the attempts to associate with CVC evidence how the disputed domain name is being used in bad faith. The disputed domain name creates a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the “www.cvcgroups.com” website and persons purporting to be connected with it, thereby seeking to receive a commercial advantage from third parties who are misled by what appears to be the name of a very well-known and reputable business, CVC.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The disputed domain name consists of the Complainant’s trademark CVC and the ending “groups”, followed by the generic Top-Level Domain (“gTLD”) “.com”. According to the consensus view of UDRP panels, the addition of generic terms such as “groups” to a trademark in a domain name is normally insufficient in itself to avoid a finding of confusing similarity (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.9). This all the more true here since the term “groups” is used to designate the CVC group of companies.

The gTLD “.com” may further be disregarded when assessing identity or confusing similarity.

The Complainant has thus fulfilled paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name.

Based on the Complainant’s credible contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

As illustrated in section 5.A. above, the disputed domain name appears to have been used by individuals identifying themselves as representatives of the Complainant to mislead Internet users in an apparent attempt at fraud. Such conduct fulfils the requirements of paragraph 4(b)(iv) of the Policy.

Accordingly, the Complainant has also satisfied paragraph 4(a)(iii) of the Policy.

7. Decision

For 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 <cvcgroups.com> be transferred to Complainant.

Tobias Zuberbühler
Sole Panelist
Date: July 19, 2016