WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Confederation Nationale Du Credit Mutuel v. WhoisGuard Protected, WhoisGuard, Inc. / Daniel Kent
Case No. D2019-2477
1. The Parties
The Complainant is Confederation Nationale Du Credit Mutuel, France, represented by MEYER & Partenaires, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Daniel Kent, Benin.
2. The Domain Name and Registrar
The disputed domain name <mutual-credit.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 10, 2019. On October 10, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 10, 2019, 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 October 11, 2019, 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 October 14, 2019.
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 October 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 6, 2019.
The Center appointed Reyes Campello Estebaranz as the sole panelist in this matter on November 12, 2019. 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 the political and central body for a French banking and insurance services group, which operates in France and internationally (having 3,178 offices in France, congregated in 18 regional federations), with 12 million clients. The Complainant is present in all fields of finance being a major actor on the market of banking services for both individuals and businesses.
The Complainant operates under the mark CREDIT MUTUEL, holding registered trademark rights in this mark, alone or in combination with other figurative elements, of which the following are sufficiently representative for the present proceeding:
French Trademark No. 1475940 CREDIT MUTUEL, figurative, filed on July 8, 1988, registered in classes 35 and 36;
French Trademark No. 1646012 CREDIT MUTUEL, figurative, filed on November 20, 1990, registered in classes 16, 35, 36, 38 and 41;
International Trademark No. 570182 CREDIT MUTUEL, figurative, registered May 17, 1991 in classes 16, 35, 36, 38 and 41.
The Complainant further owns a domain name portfolio comprising its mark CREDIT MUTUEL, including, inter alia, <creditmutuel.com> (registered on October 28, 1995), <creditmutuel.fr> (registered on August 10, 1995), <creditmutuel.info> (registered on September 13, 2001), <creditmutuel.org> (registered on June 3, 2002), and <creditmutuel.net> (registered on October 3, 1996). The Complainant’s domain names are linked to its corporate website in connection with its products and services, offering online banking services and access to its clients’ bank accounts.
The disputed domain name was registered on June 26, 2019. It resolves to a website in French, among other languages (English, German, Spanish, Italian and Portuguese), apparently owned by a company that identifies itself as “Mutual Credit”, which offers an online funding platform for providing – as indicated in the site – loans at competitive interest rates “to support any honest person in difficult circumstances”. This website includes in its heading, before the text content of the site, the words “Mutual Credit” all in capital letters preceded by a logo, and provides contact through an email address, but does not include any address or other relevant information related to the owner of the site (fiscal number, domicile, or any other contact details).
5. Parties’ Contentions
Key contentions of the Complaint may be summarized as follows:
The Complainant’s trademark CREDIT MUTUEL is well known in the sense of article 6bis of the Paris Union Convention, as it has been recognized in various UDRP cases. Further, according to a French Ministry order dated October 16, 1958, the mark CREDIT MUTUEL is reserved to the Complainant and its related branches. These exclusive rights are prior in many years to the registration of the disputed domain name.
The disputed domain name is almost identical and confusingly similar to the Complainant’s trademark CREDIT MUTUEL. The substitution of the letter “e” by a letter “a” in the word “mutuel”, the inversion of the words (“mutual credit” instead of “credit mutuel”), and the adjunction of a hyphen separating these terms, are minor differences, which are not sufficient to change the overall impression of the disputed domain name as being confusing similar to the Complainant’s trademark. Further, the mere addition of the top-level domain (“TLD”) “.com” is not sufficient to avoid the confusion as it just refers to the Complainant’s presence on the Internet. This is a typical case of typosquatting, seeking to take advantage of errors by users searching for the Complainant’s mark, accentuated by the notoriety of CREDIT MUTUEL.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is an individual using the Complainant’s trademark CREDIT MUTUEL without license or authorization and not having any business relations with the Complainant. Further, the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name. The disputed domain name is used in connection with a website that gives the misleading impression of being that of the Complainant.
The Respondent has registered and is using the disputed domain name in bad faith. Due to the strong reputation and well-known character of the trademark CREDIT MUTUEL, continually used for many years before the registration of the disputed domain name, the Respondent could not plausibly ignore the existence of the Complainant’s trademark at the time the disputed domain name was registered. These circumstances, together with the fact that the mark CREDIT MUTUEL is almost identically reproduced in the disputed domain name, support the presumption that the Respondent registered the disputed domain name in bad faith targeting the Complainant’s mark. The Respondent’s location, Benin, was until 1958 a colony of France and French has been its prevalent language, which explains why the Respondent knew of the Complainant’s high visibility and reputed trademark. The disputed domain name was registered with the aim of taking advantage of the reputation and well-known character of the trademark CREDIT MUTUEL and the Complainant’s international banking business. The Respondent’s website offering related financial services appears to be an attempt to create a likelihood of confusion with the Complainant and its trademark for a commercial gain within the meaning of paragraph 4(b)(iv) of the Policy. Further, due to the high similarity of the disputed domain name with the trademark CREDIT MUTUEL, there is no way in which it may have been registered and could be used in good faith.
The disputed domain name is used in bad faith. The disputed domain name is linked to a website offering financial services (specifically credits and loans), which suggests a link to the Complainant’s group. The alleged owner of this site, a so-called “Mutual Credit” company, is not registered in the French Trade and Companies Register and it is not listed in the insurance and financial intermediaries’ directory, in accordance with the European Union directives and regulations. The Respondent deliberately seeks to create a risk of confusion with the Complainant and its trademark, being able to collect personal data of the Internet users through a contact form on this website for potential use in a fraudulent way. Further, the disputed domain name is used as an email address with an activated email server, which allows the Respondent to send potentially fraudulent emails. All these circumstances disturb the online presence of the Complainant’s trademark CREDIT MUTUEL, creating a strong suspicion that the Respondent is using or intending to use the disputed domain name in a phishing scam.
As a banking group, the Complainant is continually facing counterfeiting and phishing attempts to acquire sensitive information such as usernames, passwords and credit cards or account details. Most phishing attempts are targeting bank customers and online payment services. This proceeding aims to prevent a new phishing attempt and to protect the Complainant’s clients from counterfeiting and fraud.
The Complainant has cited previous decisions under the Policy that it considers supportive of its position.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that, in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) [the 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 Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has authority to decide the dispute.
Paragraph 15(a) of the Rules provides that “A Panel shall 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”. The Panel has taken into consideration all of the evidence, annexed material and submissions provided by the Parties, and has performed some limited independent research under the general powers of the Panel articulated inter alia in paragraphs 10 and 12 of the Policy. See section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
A. Identical or Confusingly Similar
Regarding the confusing similarity test, it is important to note that in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered identical or confusingly similar to that mark for purposes of the Policy. In such cases, a domain name consisting of a common, obvious, or intentional misspelling of a trademark (containing sufficiently recognizable aspects of that mark), is considered confusingly similar to the relevant mark for the purposes of the first element, and employing a misspelling in this way normally signals an intention to confuse users seeking or expecting the complainant. See sections 1.7 and 1.9 of the WIPO Overview 3.0.
Further, the applicable TLD in a domain name is considered a standard technical registration requirement and, as such, is generally disregarded under the first element confusing similarity test, irrespective of its particular ordinary meaning, although said meaning may be relevant to the assessment of the second and third elements. See section 1.11, WIPO Overview 3.0.
The Complainant indisputably has rights in the registered mark CREDIT MUTUEL. The disputed domain name incorporates the mark CREDIT MUTUEL in its entirety replacing the letter “e” in the word “mutuel” with the letter “a”, altering the position of the terms (“mutual credit” instead of “credit mutuel”), and using a hyphen to separate the terms in the disputed domain name. The first difference (letter “a” instead of “e”) could be considered as a common misspelling of the word “mutuel” especially for non-French speakers, and other differences introduced in the disputed domain name do not avoid the direct recognition of the mark. Further, the Panel considers that the disputed domain name may be considered as a direct translation into the English language of the Complainant’s mark. The Complainant’s mark CREDIT MUTUEL is therefore recognizable in the disputed domain name, and the TLD “.com” is a technical requirement, generally disregarded for the purpose of the analysis of the confusing similarity. Accordingly, this Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark, and the first element of the Policy under paragraph 4(a)(i) has been satisfied.
B. Rights or Legitimate Interests
Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the Respondent’s knowledge. Thus, the consensus view is that paragraph 4(c) of the Policy shifts to the Respondent the burden of coming forward with evidence of rights or legitimate interests in the disputed domain name, once the Complainant has made a prima facie showing indicating the absence of such rights or legitimate interests.
The Complainant has alleged that the Respondent is not a licensee nor has he been otherwise authorized to use the trademark CREDIT MUTUEL. Furthermore, as the Complainant has asserted the disputed domain name is used in connection with a website in the same business of the Complainant (the financial sector), which creates a high risk of implied affiliation and confusion for Internet users. This suggests an attempt to use a name materially very similar to the mark in an effort to divert Internet users or potential customers to an alternative business for commercial gain.
This effectively shifts the burden to the Respondent of producing evidence of rights or legitimate interests in the disputed domain name. However, the Respondent has chosen not to reply to the Complaint, not providing any explanation or evidence of rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in the disputed domain name by demonstrating, without limitation:
(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.
A core factor in assessing fair use of a domain name is whether the domain name falsely suggests affiliation with the Complainant’s trademark. See section 2.5, WIPO Overview 3.0. The disputed domain name incorporates the Complainant’s trademark in its entirety with minor differences. The Panel considers that the common misspelling for non-French speakers of using the letter “a” instead of “e” in the word “mutuel”, as well as the terms’ order alteration (following the English language phrase pattern), points to an intention to confuse Internet users seeking for or expecting the Complainant, corroborated by the website content linked to the disputed domain name, which relates to the same business of the Complainant. An extract provided by the Complainant shows that the website linked to the disputed domain name refers to a financial business providing various types of credits and loans. Therefore, the Panel considers that there is a risk of implied affiliation and confusion.
The Panel further notes the high presence over the Internet of the trademark CREDIT MUTUEL in connection to banking and financial services.
It is further remarkable that the Respondent has chosen not to reply to the Complaint, not providing any explanation connected to the above-mentioned circumstances (included in paragraph 4(c) of the Policy) or any other that may be considered as a fair use or legitimate interest in the disputed domain name.
All the above-mentioned circumstances lead the Panel to conclude that the Respondent has not produced evidence to rebut the Complainant’s prima facie case, and all the cumulative facts and circumstances indicate that the Respondent lacks any rights or legitimate interests in the disputed domain name. Therefore, the second element of the Policy under paragraph 4(a)(ii) has been established.
C. Registered and Used in Bad Faith
The Policy, paragraph 4(a)(iii), requires that the Complainant establish that the disputed domain name has been registered and is being used in bad faith.
At the time of the registration of the disputed domain name, this Panel considers it unlikely that the Respondent did not know about the CREDIT MUTUEL mark, and did not have it in mind. Several factors in this case lead to this conclusion. Particularly, the nature of the disputed domain name as a common misspelling of the mark CREDIT MUTUEL, or its direct translation into English language, and the extensive use and promotion, as well as the high presence of this mark over the Internet, which leads one to conclude that it is notorious in the banking and financial services sector.
The Panel further considers that all cumulative circumstances of this case point to bad faith registration and use of the disputed domain name: (i) the disputed domain name incorporates the Complainant’s trademark CREDIT MUTUEL in its entirety, introducing a common misspelling (a letter “a” instead of “e” in the word “mutuel”) and altering the order of the terms (“mutual credit” instead of “credit mutuel”), which may be considered as a translation into English of the notorious trademark, intrinsically creating a likelihood of confusion and affiliation; (ii) the Complainant’s trademark is notorious in its sector, and the Complainant operates internationally; (iii) the disputed domain name has been used to host a website in the same sector of the Complainant’s business (financial services); (iv) the trademark CREDIT MUTUEL predates in many years the registration of the disputed domain name, being continually used at least for more than fifty years; (v) the Complainant owns and uses the domain name <creditmutuel.com> corresponding to the trademark CREDIT MUTUEL under the TLD “.com” (which is also similar to the disputed domain name); (vi) the website linked to the disputed domain name does not offer any information about its owner apart from the company name “Mutual Credit” and does not provide any reference to its fiscal information, location, address, or other contact details, merely providing an email address as the sole information about the company providing the services offered at the website; and (vii) the Respondent has not offered any explanation of any rights or legitimate interests in the disputed domain name, deliberately choosing not to reply to the Complaint.
All these circumstances lead the Panel to conclude that the Respondent registered the disputed domain name to target the Complainant’s trademark, with the intention to attract Internet users to its website for commercial gain or any other sort of benefit derived from the information and contacts obtained through the email and the contact form provided in its website, under a phishing system.
All of the above-mentioned leads the Panel to conclude that the disputed domain name was registered and is being used in bad faith, targeting the Complainant’s trademark and creating a likelihood of confusion with the Complainant and its mark to misleadingly attract Internet users, disrupting the Complainant’s business. Accordingly, the Panel concludes that the Complainant has met its burden of establishing that the Respondent registered and is using the disputed domain name in bad faith under the third element 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 <mutual-credit.com> be transferred to the Complainant.
Reyes Campello Estebaranz
Date: November 19, 2019