WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Digitaleo v. Virginie Charuel, SACO
Case No. D2015-2266
1. The Parties
Complainant is Digitaleo of Rennes, France, represented by AVOXA, France.
Respondent is Virginie Charuel, SACO of Fargo, North Dakota, United States of America.
2. The Domain Name and Registrar
The disputed domain name <app-digitaleo.com> is registered with Melbourne IT Ltd (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 14, 2015. On December 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 15, 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 December 18, 2015. In accordance with the Rules, paragraph 5, the due date for Response was January 7, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 8, 2016.
The Center appointed Peter Wild as the sole panelist in this matter on January 14, 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
Complainant is organized as a simplified joint stock company in France and is active in the field of relationship marketing solutions that allow its clients to communicate on all digital channels: web, mobile, and social networks. Complainant owns Community Trademark no. 9493297 DIGITALEO (and device), registered on May 11, 2011, and the domain names <digitaleo.com> and <digtaleo.fr>, registered on its behalf by the company DIGITAL MEDIA. The domain name <digitaleo.fr> points to Complainant's website.
5. Parties' Contentions
Complainant runs a business in the field of electronic marketing and social media under the website "www.digitaleo.fr" and the subdomain "app.digitaleo.com". According to Complainant, the website to which the disputed domain name points is an almost identical copy of Complainant's page under "app.digitaleo.com". Complainant also contends that some elements of Respondent's website, such as the general terms and conditions, are an exact copy of Complainant's corresponding document.
Complainant claims that the disputed domain name is confusingly similar to its Community Trademark no. 9493297, that Respondent has no rights or legitimate interests in the disputed domain name and it is using and has registered the disputed domain name in bad faith, primarily to cause Complainant's client's to enter their usernames and passwords on Respondent's website.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant asserts that it owns Community Trademark no. 9493297 DIGITALEO (and device). This is supported with a copy of the registration certificate. The dominant element of that trademark is "digitaleo".
Complainant further asserts that it is using the subdomain "app.digitaleo.com" for clients' online access.
Complainant argues that the disputed domain name incorporates, as a dominant part, its registered trademark DIGITALEO, with the addition of the generic word "app", which is the short and usual term for "application", a generic word in the context of digital and social media. The Panel finds that Internet users are likely to regard the term "app-" within the disputed domain name as descriptive of a website where they could find an application for Complainant's software or services and the main distinctive element of the disputed domain name to be "digitaleo".
For these reasons the Panel finds:
Complainant has rights in respect of Complainant's trademark.
The disputed domain name is confusingly similar to Complainant's trademark in so far as it contains the distinctive element "digitaleo" accompanied by the descriptive and generic term "app-".
Accordingly, the Panel is satisfied that the first element of the Policy is met.
B. Rights or Legitimate Interests
Complainant asserts that Respondent is using the disputed domain name for a website which looks exactly like Complainant's website under "app.digitaleo.com", inducing consumers to reveal passwords and usernames for their accounts with Complainant. In Complainant's view, this amounts to a deliberate attempt to take commercial advantage of Complainant's trademark without Complainant's consent. Whether Respondent has rights or legitimate interests in the disputed domain name must be assessed against Complainant's rights taking into account the manner in which Respondent uses the disputed domain name. In these circumstances, it is difficult to see how Respondent's conduct could be characterized as legitimate and thus permissible. In the absence of Respondent's comments, and in light of the evidence submitted by Complainant, the Panel finds that Complainant has satisfied its burden to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name.
The Panel is satisfied that the second element of the Policy has been met.
C. Registered and Used in Bad Faith
According to the record, Respondent is using the disputed domain name for a website which looks exactly like Complainant's website under "app.digitaleo.com", inducing consumers to reveal passwords and usernames for their accounts with Complainant. This will likely result in commercial gain for Respondent and even opens the door for abuse of this information to the detriment of Complainant and its clients. Respondent also chose a domain name which not only incorporates Complainant's trademark, but also likely violates Complainant's copyrights by copying content of its website without authorisation. This fact alone shows that Respondent was well aware of Complainant and its business and trademark when it registered the disputed domain name. In addition, the disputed domain name is almost identical to the subdomain which Complainant is using to offer its application (app-digitaleo.com // app.digitaleo.com) and thereby deliberately attempts to mislead the Internet user. As the website to which the disputed domain name points also is designed to obtain confidential information from users by imitating Complainant's website, Respondent's bad faith is evident.
Respondent did not submit any explanation or possible justification for its choice of the disputed domain name.
In light of all these elements, it is reasonable to infer that Respondent wishes to take advantage of Internet users who may be users of Complainant's services. In the present set of facts, it is inconceivable how Respondent would be able to explain as to how and why it chose the disputed domain name in good faith and why confusion and deception is unlikely to occur. The Panel therefore finds that Respondent registered and used the disputed domain name in bad faith. That is, so as to take advantage of Internet users who know and trust Complainant's trademark and to disrupt Complainant's business.
In light of these factors, the third element of the Policy has been met.
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 <app-digitaleo.com> be transferred to Complainant.
Date: January 19, 2016