WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Confédération Nationale du Crédit Mutuel v. Ben Taurins
Case No. D2018-1395
1. The Parties
Complainant is Confédération Nationale du Crédit Mutuel of Paris, France, represented by MEYER & Partenaires, France.
Respondent is Ben Taurins of Cotonou, Benin.
2. The Domain Name and Registrar
The disputed domain name <kredit-mutuel.com> ("Disputed Domain Name") is registered with LiquidNet Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 22, 2018. On June 22, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 22, 2018, 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 Complainant on June 26, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on June 26, 2018.
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 Respondent of the Complaint, and the proceedings commenced on June 28, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 18, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on July 19, 2018.
The Center appointed James H. Grossman as the sole panelist in this matter on August 6, 2018. 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 the corporate and business center of a very large banking group based in France, known as Crédit Mutuel, providing such services to both businesses and individuals. Crédit Mutuel is one of the largest French banking and insurance services group with some 12 million clients. Of particular note is that Complainant was registered in France on July 1, 1901 and thus has accumulated a reputation over well over a century. In France alone, Complainant has 3,176 offices in 18 regional federations.
The Disputed Domain Name was registered with Registrar on May 4, 2018. The Disputed Domain Name resolves to a website where Respondent purports to offer financial credit solutions under the name "Mutual Kredit". Complainant advises it became aware of the registration of the Disputed Domain Name on June 5, 2018. This action was filed 17 days thereafter.
Complainant operates a web portal under the URLs "www.creditmutuel.com" and "www.creditmutuel.fr", dedicated to both off and online services and providing information to all, including prospective and existing clients about its banking and other services. More significantly in today's banking climate, "www.creditmutuel.fr" offers the essential online banking services to its clients, who are able to manage their account online through this website. This has become the way many clients do their banking business and is essential to maintaining its position among leading banks in France.
Complainant is the registered owner of a large number of trademarks consisting of or including the name Crédit Mutuel in France and abroad notably the following Trademarks (hereinafter referred to as the "Trademark" or as the "Trademarks"):
- CREDIT MUTUEL, French semi-figurative trademark No. 1475940 of July 8, 1988, in classes 35 and 36 of the 1957 Nice Agreement, renewed on August 27, 2008; - CREDIT MUTUEL, French semi-figurative trademark No. 1646012 of November 20, 1990 in classes 16, 35, 36, 38 (internet services) and 41 of the Nice Agreement, renewed on September 15, 2010;
- CREDIT MUTUEL, nominative European Union Trade Mark No. 9943135 of October 20, 2011 in classes 9, 16, 35, 36, 38, 41, 42, and 45 of the Nice Agreement;
- CREDIT MUTUEL, semi-figurative International Trademark No. 570182 of May 17, 1991 in classes 16, 35, 36, 38 and 41 of the Nice Agreement, designating Benelux, Italy, Liechtenstein, Monaco, Portugal, San Marino and Switzerland renewed on June 23, 2011;
- CREDIT MUTUEL FACTOR nominative French trademark No. 99800537 of June 28, 1999 in classes 35 and 36 of the Nice Agreement, duly renewed.
Complainant's CREDIT MUTUEL Trademark is also included in domain names registered under various generic Top-Level Domains ("gTLDs") and country code Top-Level Domains ("ccTLDs").
Complainant and its IT-dedicated subsidiary Euro Information are, respectively, the holder of domain names ("Domain Names") including, inter alia:
<creditmutuel.info>registered on September 13, 2001 and duly renewed since then;
<creditmutuel.org> registered on June 3, 2002 and duly renewed since then;
<creditmutuel.fr> registered on August 10, 1995 and duly renewed since then;
<creditmutuel.com> registered on October 28, 1995 and duly renewed since then;
<creditmutuel.net> registered on October 3, 1996 and duly renewed since then.
According to Complainant, in a case involving <credit-mutuel-3dsecure.com> (Confederation Nationale du Credit Mutuel v. Philippe Marie, WIPO Case No. D2018-1395), the Panel wrote "Besides, Complainant's trademark CREDIT MUTUEL is well known". Another indication of the renown of Complainant is that pursuant to the French Ministry Order No 58-966 of October 15, 1958, the use of the wording CREDIT MUTUEL is reserved to Complainant and to its related branches.
It should be noted that all of the above Trademark and intellectual property rights were established prior to the registration of the Disputed Domain Name.
Respondent failed to respond to the Complaint.
5. Parties' Contentions
Complainant has provided evidence of its size and image.
Complainant in its Complaint contends that the Disputed Domain Name contains all of the elements necessary for the Panel to transfer the Disputed Domain Name to it in that:
1. Complainant has demonstrated its prior rights to its Trademarks and Domain Names.
2. The Disputed Domain Name is confusingly similar to one of Complainant's Domain Names and can only confuse someone looking at the site into believing it is that of Complainant. The sole difference between the two is the substitution of the letter "K" for the letter "C". Complainant makes the point that this is a typical case of typosquatting, an attempt by Respondent to make his domain name so close to that of Complainant as to obtain the benefit of small typographical errors by users and thus hopefully provide all their respective banking and financial information to the typosquatter. Further the letters "C" and "K" are pronounced identically in the French language, making the confusion even more likely. Complainant cites two cases that point to this typosquatting issue which the panels in both cases have determined the disputed domain name to be confusingly similar and thus fulfilling one of the criteria for transferring the disputed domain name from the respondent (Vivid Seats LLC v. Peter Smith and Maria da Silva, WIPO Case No. D2017-1083 and Walgreen Co. v. Domain Privacy Service FBO Registrant / Name redacted, WIPO Case No. D2017-1550).
3. Respondent has no rights or legitimate interests in the Disputed Domain Name and Complainant has not given Respondent any right to use the Disputed Domain Name. Respondent is not currently and has never been known by the words "Kredit Mutuel" nor is there any filing of a trademark application by Respondent. Complainant knows of no noncommercial or fair use of the Disputed Domain Name.
4. Respondent registered the Disputed Domain Name in order to take advantage in some way of Complainant's well-recognized and highly-regarded Trademarks and Domain Names, which is evidence of bad faith. Complainant points out again the well-recognized trademark and name of Complainant cannot help but raise the bad faith issue. In similar cases where a prior trademark is well recognized, it has been held that such notoriety of a complainants trademark "creates a prima facie presumption the respondent registered the disputed domain name for the purpose of selling it to Complainant or to one of its competitors, or that it was intended to be used in some way to attract for commercial gain users to the website by creating a likelihood of confusion with Complainant's mark" (Arthur Guinness Son & Co. (Dublin) Ltd v. Steel Vertigogo, WIPO Case No. D2001-0020). Thus, as a result of the reputation and well-known character of Complainant's trademarks, Respondent must have known and been aware of Complainant's right onthe prior trademark CREDIT MUTUEL, at the time it registered the Disputed Domain Name. Complainant comes to the conclusion that there is really no way in which the Disputed Domain Name would have been registered and then used in good faith.
5. Respondent is using the disputed domain name in bad faith. Advertisements for Mutual Kredit provided by Complainant as annexes to its filing show what purports to be a sophisticated banking operation with phrases such as "Discover the experience of Kredit Mutuel". Complainant states that there are no legal notices on Respondent's website and that the Respondent's company and operations are not in fact legitimate.
Respondent did not reply to the Complaint's contentions.
6. Discussion and Findings
In order to succeed on its Complaint, Complainant must demonstrate that each (and thus all) of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests with respect to the Disputed Domain Name; and
(iii) The Disputed Domain Name has been registered and is being used in bad faith.
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."
Respondent has defaulted by failing to timely file a response to the allegations of Complainant. Paragraph 14(a) of the Rules states: "In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the panel, the panel shall proceed to a decision on the complaint."
Also, paragraph 14(b) of the Rules states: "If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the panel, the panel shall draw such inferences as it considers appropriate." When applying this provision, UDRP panels have generally concluded that the respondent's default does not automatically result in a decision in favor of the complainant. A number of cases hold for a non-responsive respondent where a complainant fails to prove all the elements of paragraph 4(a). Nevertheless, a panel may draw negative inferences from the respondent's default as per paragraph 14 of the Rules, particularly with respect to those issues uniquely in the knowledge and possession of the respondent. See Tradewind Media, LLC d/b/a Intopic Media v. Jayson Hahn, WIPO Case No. D2010-1413.
A. Identical or Confusingly Similar
The Domain Name incorporates in its entirety Complainant's CREDIT MUTUEL Trademark, merely substituting the letter "C" with the letter "K".
Complainant contends that the addition of the gTLD ".com" is not sufficient to change the overall impression of the Disputed Domain Name as being confusingly similar to Complainant's Trademarks. The gTLD ".com", being a standard registration requirement, may be disregarded under the first element confusing similarity test, see section 1.11 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0").
For the reasons set forth by Complainant and the Panel's points in this paragraph, the Panel finds that the Disputed Domain Name is identical or confusingly similar to Complainant's Trademarks and that Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The second element that Complainant needs to prove is that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name (Policy, paragraph 4(a)(ii)). Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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 or service mark at issue."
Respondent has failed to rebut Complainant's prima facie case that Respondent lacks rights or legitimate interests in the Disputed Domain Name. Further, as to these criteria, Complainant has stated the following:
Respondent has no right to use the Trademarks. There is no business or legal relationship between Complainant and Respondent and Respondent has not been authorized by Complainant to use the Disputed Domain Name. To the knowledge of the Panel, Respondent is not making any legitimate noncommercial or fair use of the Disputed Domain Name. The website at the Disputed Domain Name purports to offer financial credit solutions. There are no legal notices on the website, and according to Complainant, there does not appear to be any registered company associated with Respondent. In the absence of any Response, the Panel finds that Respondent's use of the Disputed Domain Name is not bona fide, but rather appears to be part of some illegitimate scheme.
Complainant, and the Panel concurs, has provided a clear picture showing Respondent lacks rights or legitimate interests within the meaning of the Policy, paragraph 4(a)(ii).
The Panel herein determines that Respondent lacks rights or legitimate interests in the Disputed Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the complainant to demonstrate that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy sets out a list of circumstances, inter alia, that may indicate bad faith. Complainant has set out arguments to meet these considerations and the Panel has made its own analysis.
According to Complainant, Crédit Mutuel provides services to 12 million clients, with 3,178 offices in France. What is not mentioned but of interest to the Panel is that the country of Benin, the location of Respondent, was until 1958 a colony of France and French has been its prevalent language. This may explain why Respondent knew of Complainant's high visibility. So it seems that Respondent is seeking to find clients of Complainant who will simply not notice the small difference in spelling and no difference in pronunciation. The Trademarks referred to above in Section 4 as well as its rights to the Domain Names are well recognized as referring to its banking and services businesses.
It has long been recognized that consumers expect domain names incorporating a company's name or trademark to lead to a website maintained by or affiliated with the trademark owner. See, Panavision Int'l L.P. v. Toeppen, 141 F.3d. 1316, 1326 (9th Cir. 1998). Obviously, this is not what has occurred in this case.
Complainant's position is quite clear that the Disputed Domain Name is registered with the aim of taking advantage of the reputation of the well-known Trademark CREDIT MUTUEL and the international banking and services business related thereto. The purported offering of financial credit solutions by the Respondent under the name "Mutual Kredit" appears to be an attempt to create a likelihood of confusion with Complainant's CREDIT MUTUEL Trademark for its own commercial gain within the meaning of paragraph 4(b)(iv) of the Policy.
The Panel sees the actions of Respondent as reflected in this case as a bad faith attempt to get something to which it is not entitled. In view of the worldwide reputation of Complainant, Complainant has made a strong argument with which the Panel agrees, that it is unlikely Respondent was unaware of Complainant's reputation or Trademarks issued many years before Respondent registered the Disputed Domain Name in May 2018.
The Panel holds that Complainant has met its burden of proof under paragraph 4(a)(iii) of the Policy.
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 <kredit-mutuel.com> be transferred to Complainant.
James H. Grossman
Date: August 17, 2018