WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Confédération Nationale du Crédit Mutuel v. Mira berdok/Contact Privacy Inc. Customer 0134933888, and Name Redacted/Contact Privacy Inc. Customer 0134966581
Case No. D2013-1781
1. The Parties
Complainant is Confédération Nationale du Crédit Mutuel of Paris, France, represented by MEYER & Partenaires, France.
Respondents are Mira berdok of Italy, Contact Privacy Inc. Customer 0134933888 of Toronto, Ontario, Canada; and Name Redacted, Contact Privacy Inc. Customer 0134966581 of Toronto, Ontario, Canada.
2. The Domain Names and Registrar
The disputed domain names <banquecreditmutuel.net> and <creditmutueldefrance.com> (the “Domain Names”) are registered with Tucows Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2013. On October 16, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrants and contact information for the Domain Names which differed from named Respondents and contact information in the Complaint. The Center sent an email communication to Complainant on October 18, 2013 providing the registrants and contact information disclosed by the Registrar, inviting Complainant to submit an amendment to the Complaint, and requesting Complainant to address the issue of consolidation of multiple registrants disclosed by the Registrar. Complainant filed an amended Complaint on October 23, 2013 which included a consolidation request regarding multiple registrants.
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 Respondents of the Complaint, and the proceedings commenced on October 24, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was November 13, 2013.
On October 29, 2013, the Center received an email communication from Name Redacted, mentioning that she was very surprised of the Complaint, mentioning that she did not understand how her postal address was obtained, stating that she had nothing to do with the current proceeding, and finally confirming and certifying that she was not at all related to the case and that she was not the “registrant on this records”. On October 30, 2013, the Center acknowledged receipt of this email communication, informing her that the Center is not in a position to make a substantive assessment on the merits of her claims and/or evidence in this regard. The independent Administrative Panel (on appointment) will decide proper Respondent(s) in the current proceeding.
No formal Response was filed with the Center by the specified Response due date. Therefore, the Center notified Respondents’ default on November 14, 2013. On the same day, the aforementioned Name Redacted sent another email communication to the Center, re-iterating that she is not related to the current proceeding. The Center acknowledged receipt of this email communication.
The Center appointed Dinant T. L. Oosterbaan as the sole panelist in this matter on November 18, 2013. 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. Preliminary matter – Identity Theft
Between October 29 and November 14, 2013 one of the two Respondents against whom the Complaint was filed (“Name Redacted”), sent a number of email communications to the Center stating that she did not understand how her postal address was mentioned in the Complaint, that she was not related to anything written in the Complaint, and she was not the registrant of record.
The Panel has reviewed the correspondence between the Center and this person against whom the Complaint was filed and has come to the conclusion that Name Redacted is not proper Respondent to this Complaint but that her name and address have been used, wrongly, by another unknown person. The Panel notes in particular that the name and address of this person are of an existing person in France (the Panel has verified this by checking the French public telephone directory) while the address of this Respondent provided by the Registrar mentions that this French address is located in Italy at the same time providing an Italian telephone number. In the view of the Panel this is an obvious and clear example of illegal identity theft.
The Panel is satisfied that this person against whom the Complaint was filed has no interest in the Domain Name(s) or what might become of it. In the circumstances, references to Respondents in this Decision (and the findings of the Panel set out hereafter) do not refer or have application to this person against whom the Complaint was filed. This Decision is directed to and affects the unknown third party registrant of the Domain Name who wrongly used the name of another person (the third party also described in this decision as “Registrant”). It is Registrant’s rights and legitimate interests in the Domain Name and Registrant’s good or bad faith acting with which this proceeding is concerned, and not those of Respondents.
Given the circumstances, the Panel has decided that no useful purpose is to be served by referring to the name of this individual against whom the Complaint was filed and has therefore not included her name in the heading or body of this Decision. The Panel has, however, attached as an Annex to this Decision an instruction to the Registrar regarding transfer of the Domain Names that does include the name of this person against whom the Complaint was filed so as to enable effect to be given to the order contained herein. To this end the Panel authorizes the Center to transmit the Annex to this Decision to the Registrar and the parties but further directs the Center and Registrar, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that the Annex to this Decision shall not be published based on exceptional circumstances.
5. Factual Background
Complainant is the second largest French banking and insurances services group.
According to the evidence submitted by Complainant, Complainant has a large number of French and international trademark registrations for CREDIT MUTUEL.
Complainant is the owner of the following trademarks:
- French semi-figurative trademark CREDIT MUTUEL number 1475940, filed on July 8, 1988;
- French semi-figurative trademark CREDIT MUTUEL number 1646012, filed on November 20, 1990;
- International semi-figurative trademark CREDIT MUTUEL number 570182, filed on May 17, 1991.
In addition Complainant has several domain names and websites containing the CREDIT MUTUEL name and mark, in particular websites under “www.creditmutuel.eu”, “www.creditmutuel.com”, “www.creditmutuel.net” and “www.creditmutuel.fr”.
The Domain Name <creditmutueldefrance.com> was registered on June 18, 2013, and the Domain Name <banquecreditmutuel.net> was registered on June 22, 2013.
The trademark registrations of Complainant have been issued prior to the registration of the Domain Names.
6. Parties’ Contentions
Complainant contends that the Domain Names are identical or confusingly similar to the CREDIT MUTUEL trademark, that Respondents have no rights or legitimate interests with respect to the Domain Names, and that the Domain Names were registered and used in bad faith. Complainant requests transfer of the Domain Names which belong to Respondents, which it believes to be the same person and are registered by the same unknown entity.
The basis of its belief that there is a common link between Respondents and that the two Domain Names have been registered by the same entity/registrant are as follows:
(1) The contact details of two Respondents are inaccurate and incoherent; according to Complainant the addresses are fictitious.
(2) The Domain Names have been configured on the same servers:
In addition, the same registration service provider has been used.
(3) The Domain Names have all been registered with the same Registrar within a span of four days (between June 18, 2013 and June 22, 2013).
(4) The names used are visible aliases related to the same person, whose true identity remains purposely hidden, and each of the Domain Names incorporates the well-known CREDIT MUTUEL trademark in its entirety.
(5) The Domain Names resolve to websites that are nearly identical; both websites mention that they are “under maintenance” (“Sito web in manutenzione”).
Respondents did not reply formally to Complainant’s contentions. The Panel reiterates that one of two Respondents (Name Redacted) against whom the Complaint was filed, sent a number of email communications to the Center stating that she was not the registrant of record. As mentioned above the Panel concluded that there is identity theft.
7. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Paragraph 4(a) of the Policy requires that Complainant proves each of the following three elements to obtain an order that the Domain Names should be transferred or cancelled:
(i) the Domain Names registered by Respondents are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondents have no rights or legitimate interests in respect of the Domain Names; and
(iii) the Domain Names have been registered and are being used in bad faith.
The Panel will proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied by Complainant in this proceeding.
A. Preliminary Procedural Issue - Consolidation of Proceedings
Paragraph 4(f) of the Policy allows a panel to consolidate multiple disputes between parties at its sole discretion and paragraph 10(e) of the Rules empowers a panel to consolidate multiple domain name disputes in accordance with the Policy and Rules. Neither the Policy nor the Rules expressly provide for the consolidation of multiple respondents in a single administrative proceeding. However, paragraph 3(c) of the Rules provides that a single complaint may be brought in respect of multiple domain names “provided that the domain names are registered by the same domain-name holder”.
As noted by the panel in Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons, WIPO Case No. D2010-0281, consolidation of multiple registrants as respondents in a single administrative proceeding may in certain circumstances be appropriate under paragraphs 3(c) or 10(e) of the Rules provided complainant can demonstrate that the domain names or the websites to which they resolve are subject to common control, and the panel having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties.
Accordingly, applying the principles to the facts in this case, the Panel finds that Complainant has established more likely than not that the Domain Names are subject to the common ownership or control of the same person or company (the Registrant), together with the fact that Respondents did not contest Complainant’s assertions, this Panel is persuaded that there is a single entity that has practical control over the Domain Names – that being the entity for whom the names of the registrants of record are aliases. It is Registrant’s rights and legitimate interests in the Domain Names and Registrant’s good or bad faith acting with which this proceeding is concerned, and not those of Respondents.
In the present case, each of the Domain Names incorporates Complainant’s well-known CREDIT MUTUEL mark in its entirety together with the descriptive terms “banque” (which means “bank” in English) and “defrance” (which means “from france” in English) added. The Panel accepts Complainant’s reasons set out in Section 6.A. above as being indicative that the Domain Names are subject to the common control by the same person or company. The Panel in particular finds it relevant that the contact details of both Respondents are fictitious (with a French address located in Italy).
The Panel finds such common control to justify consolidation of Complainant’s claims against Respondents of the Domain Names in this proceeding. The Panel concludes in the circumstances of this case that consolidation would be fair and equitable to all parties and procedurally efficient, and therefore will allow the consolidation as requested by Complainant pursuant to paragraph 10(e) of the Rules.
B. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, Complainant must first of all establish rights in a trademark or service mark and secondly that the Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights.
Complainant has established that it is the owner of numerous trademark registrations for CREDIT MUTUEL. The Panel notes that Complainant’s registrations predate the creation date of the Domain Names.
The Domain Names <creditmutueldefrance.com> and <banquecreditmutuel.net> incorporate the entirety of the CREDIT MUTUEL trademark as its distinctive element. Many UDRP decisions have found that a domain name is confusingly similar to a complainant’s trademark where the domain name(s) incorporates/incorporate the complainant’s trademark in its entirety. The addition of the common, descriptive and non-distinctive elements “banque” and “defrance” is insufficient to avoid a finding of confusing similarity.
The Panel finds that Complainant has proven that the Domain Names are confusingly similar to Complainant’s trademarks.
C. Rights or Legitimate Interests
In the opinion of the Panel, Complainant has made a prima facie case that Respondents lack rights or legitimate interests in the Domain Names. Complainant has not licensed or otherwise permitted Respondents to use any of its trademarks or to register the Domain Names incorporating its marks. Respondents are not making a legitimate noncommercial or fair use of the Domain Names without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks of Complainant. Based on the evidence provided by Complainant, Respondents only use the Domain Names in order to direct Internet users to a website under maintenance (“Sito web in manutenzione”) which cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Names in this case. Respondents are not commonly known by the Domain Names nor have they acquired trademark rights. Finally, Respondents provided fictitious addresses, in breach of its registration agreement, and engaged in identity theft. In these circumstances, it is clear to the Panel that Respondents are engaged in some form of deceptive activity with a view to commercial gain and that the Domain Names were registered with that in mind. Such activity cannot confer any rights or legitimate interests upon Respondents.
No substantive Response to the Complaint was filed.
Under these circumstances, the Panel finds that Respondents have no rights or legitimate interests in the Domain Names.
D. Registered and Used in Bad Faith
The Panel finds that the Domain Names have been registered and are being used in bad faith. The trademarks of Complainant have been existing for a long time. Respondents knew or should have known that the Domain Names included Complainant’s CREDIT MUTUEL well-known trademark.
In the present case, the fact that Name Redacted stated that she was the victim of identity fraud and that one of the Domain Name was registered without her knowledge or consent would be sufficient on its own to allow the Panel to make a finding of registration and use in bad faith (see Confédération Nationale du Crédit Mutuel v. Bryna Cytrynbaum, WIPO Case No. D2010-0165).
The Panel notes that the websites at the Domain Names are currently pages under maintenance (“Sito web in manutenzione”). Passive holding of the websites does not prevent the Panel from finding registration and use in bad faith. The Panel further notes that the undeveloped use of the websites at the Domain Names which incorporate Complainant’s trademark in its entirety indicates that Respondents possibly registered the Domain Names with the intention to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademarks of Complainant as to the source, sponsorship, affiliation, or endorsement of its website or location or of a service on its website or location, as per paragraph 4(b)(iv) of the Policy. Furthermore, the Panel accepts Complainant’s submission that bad faith registration and use of the Domain Names is further indicated by the fact that Respondents at the time of registration provided fictitious addresses. The Panel finally adds that the identity theft mentioned in Section 4 above is a further indication of the bad faith of Respondents.
The Panel finds that Complainant has proven that the Domain Names have been registered and are being used in bad faith.
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 <banquecreditmutuel.net> and <creditmutueldefrance.com> be transferred to Complainant.
Dinant T. L. Oosterbaan
Date: November 26, 2013