WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CMA CGM v. Diana Smith
Case No. D2015-1774
1. The Parties
Complainant is CMA CGM of Marseilles, France, represented by Inlex IP Expertise, France.
Respondent is Diana Smith of Southlake, Texas, United States of America ("United States").
2. The Domain Name and Registrar
The disputed domain name <cma-cgmn.com> (the "Domain Name") is registered with eNom (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 6, 2015. On October 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 6, 2015, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 14, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 3, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on November 4, 2015.
The Center appointed Dinant T. L. Oosterbaan as the sole panelist in this matter on November 12, 2015. 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
Complainant CMA CGM is a company incorporated in France. Complainant is the third-largest container shipping company worldwide. It operates in more than 165 countries serving over 450 ports around the world, including in the United States.
According to the evidence submitted by Complainant, Complainant has a large number of trademark registrations for CMA CGM, including International Trademark Registration CMA CGM with number 191384, filing date October 2, 2013. In addition, Complainant operates websites containing the CMA CGM mark.
The Domain Name <cma-cgmn.com> was registered on September 28, 2015.
The trademark registrations of Complainant were issued prior to the registration of the Domain Name.
5. Parties' Contentions
Complainant submits that the Domain Name is confusingly similar to its CMA CGM trademarks as it contains the well-known CMA CGM trademark in its entirety. The addition of the letter "n" is not sufficient to distinguish the Domain Name from the CMA CGM trademark.
According to Complainant, Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent is not commonly known by the Domain Name and has not acquired any trademark or service mark rights in the Domain Name. According to Complainant, Respondent is using the Domain Name to send emails to customers of Complainant from an email address, [name redacted]@cma-cgmn.com, that has the <cma-cgmn.com> address as its root as part of a common phishing scheme in which scheme Respondent makes the false claim that the customer owes money to Complainant and asks the customer to provide banking information. According to Complainant, Respondent has failed to create a bona fide offering of goods or services and is not making a legitimate noncommercial or fair use of the Domain Name.
Complainant submits that Respondent has registered and is using the Domain Name in bad faith, in particular as Respondent is using the Domain Name as part of a common phishing scheme.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the 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 Name should be transferred or cancelled:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
The Panel will proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied in this proceeding.
A. 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 Name is 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 CMA CGM. The Domain Name <cma-cgmn.com> incorporates the entirety of the widely-known CMA CGM trademark as its distinctive element. Many UDRP decisions have found that a disputed domain name is confusingly similar to a complainant's trademark where the disputed domain name incorporates the complainant's trademark in its entirety. The additions of the letter "n" and a hyphen ("-") are insufficient to avoid a finding of confusing similarity.
The Panel finds that Complainant has proven that the Domain Name is confusingly similar to Complainant's trademark.
B. Rights or Legitimate Interests
In the opinion of the Panel, Complainant has made a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name nor has she acquired trademark rights in it. Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to register the Domain Name incorporating its mark. Respondent is not 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 of Complainant. Based on the evidence provided by Complainant, Respondent only uses the Domain Name as part of a common phishing scheme. The phishing scheme uses the Domain Name as its root to create the impression that an email is sent by the financial director of Complainant to customers of Complainant in order to fraudulently induce customers to provide banking information. Obviously, such phishing scam cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. Respondent did not submit any response.
Under these circumstances, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. Noting the widely-known status of the CMA CGM mark and the overall circumstances of this case, the Panel finds it more likely than not that Respondent knew or should have known that the Domain Name included Complainant's widely-known CMA CGM trademark.
The Panel notes that Respondent's use of the Domain Name which incorporates Complainant's trademark in its entirety indicates that Respondent possibly registered the Domain Name with the intention to attract, for commercial gain, Internet users to its website or other on-line location by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship or affiliation of its location, as per paragraph 4(b)(iv) of the Policy. Furthermore, the Panel accepts Complainant's undisputed submission that bad faith registration and use of the Domain Name is further indicated by the fact that there is strong suspicion of Respondent using the Domain Name in a phishing scam.
The Panel finds that Complainant has proven that the Domain Name has been registered and is 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 Name <cma-cgmn.com> be transferred to Complainant.
Dinant T. L. Oosterbaan
Date: November 20, 2015