WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Confédération Nationale Du Crédit Mutuel v. Domain Admin, Whoisprotection.cc / Mamadou Gasama and Domain Admin, Whoisprotection.cc / Alan Foo
Case No. D2020-0552
1. The Parties
The Complainant is Confédération Nationale Du Crédit Mutuel, France, represented by MEYER & Partenaires, France.
The Respondents are Domain Admin, Whoisprotection.cc, Malaysia / Mamadou Gasama, Indonesia (the “First Respondent”) and Domain Admin, Whoisprotection.cc, Malaysia / Alan Foo, Malaysia (the “Second Respondent”).
2. The Domain Names and Registrar
The disputed domain names <client-creditmutuel.com>, <confirm-creditmutuel.com>, <credit-mutuel-adhesion.com>, <credit-mutuel-adhesion-enligne.com>, <credit-mutuel-connexion.com>, <credit-mutuel-home.com>, <espaceclient-creditmutuel.com>, <home-creditmutuel.com>, <mutualcreditfinance.com>, <solution-creditmutuel.com> (“Domain Names”) are registered with Web Commerce Communications Limited dba WebNic.cc (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 5, 2020. On March 6, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On March 7, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 23, 2020 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 March 25, 2020.
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 Respondents of the Complaint, and the proceedings commenced on April 2, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 22, 2020. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on May 7, 2020.
The Center appointed Nicholas Smith as the sole panelist in this matter on May 12, 2020. 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 a French company that provides banking and financial services. It has traded for more than 100 years and maintains a network of 3,178 offices in France serving 12 million clients. It also operates websites at “www.creditmutual.com” and “www.creditmutuel.fr”, which it has done since 1995.
The Complainant is the owner of trademark registrations for a mark containing the words “Credit Mutuel” and a triangle device (the “CREDIT MUTUEL Mark”), the earliest of which is a French trademark registered with an application date of July 8, 1988 (registration number 1475940) for services in classes 35 and 36.
Each of the Domain Names was registered between December 17, 2019 and January 18, 2020. All the Domain Names save <mutualcreditfinance.com> (the “Remaining Domain Names”) were registered to the First Respondent, with <mutualcreditfinance.com> being registered to the Second Respondent.
The Domain Name <mutualcreditfinance.com> resolves to a website (“Respondent’s Website”) purporting to be a money lending agency licenced by the Malaysian Government. The uncontested evidence in the Complaint is that no such money lending agency exists or is authorised by the Malaysian Government and the purported address of the money lending agency is that of a restaurant. Each of the Remaining Domain Names are inactive however when seeking to visit the websites at the Remaining Domain Names, the websites are flagged as leading to phishing sites.
5. Parties’ Contentions
The Complainant makes the following contentions:
(i) that the Domain Names are identical or confusingly similar to the Complainant’s CREDIT MUTUEL Mark;
(ii) that the Respondents have no rights nor any legitimate interests in respect of the Domain Names; and
(iii) that the Domain Names have been registered and are being used in bad faith.
The Complainant is the owner of the CREDIT MUTUEL Mark, having registered the CREDIT MUTUEL Mark in numerous jurisdictions, including France, Italy, and Portugal. Each of Domain Names either reproduces the CREDIT MUTUEL Mark in its entirety (along with a generic Top-Level Domain (“ gTLD”) and some descriptive words) or reproduces a misspelling of the CREDIT MUTUEL Mark (along with a gTLD and a descriptive word), neither of which distinguish any of the Domain Names from the CREDIT MUTUEL Mark.
There are no rights or legitimate interests held by the Respondents in respect of the Domain Names. The Respondents are not commonly known as the Domain Names, nor do the Respondents have any authorization from the Complainant to register the Domain Names. The Respondents are not making a legitimate noncommercial fair use of the Domain Names.
The Domain Names were registered and are being used in bad faith. The Remaining Domain Names are inactive and are likely being passively held pending sale. The Respondent’s website at “www.mutualcreditfinance.com” is a deceptive and fake website that purports to be an authorised banking enterprise when this is not the case. It is likely the purpose of the Respondent’s Website is to acquire private personal and financial information from visitors. The Complainant notes that the email servers for each of the Domain Names are active and hence it is likely that these Domain Names are being used for emails that impersonate the Complainant for the purpose of misleading actual or potential customers, and/or by attempting to phish user names, passwords, and/or other personal information from the Complainant’s customers and/or employees. Such conduct amounts to registration and use of the Domain Names in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Preliminary Matter: Consolidation of Respondents
The named registrant of the <mutualcreditfinance.com> of the Domain Names is a different individual or entity to the named registrant of the Remaining Domain Names, as identified in section 4 above. UDRP proceedings are normally brought against a single respondent. However, paragraph 10(e) of the Rules states that in certain circumstances a panel may consolidate multiple domain name disputes. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.2, states:
“Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
UDRP Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms, (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behaviour, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).”
Based on the information before it, the Panel is prepared to allow the consolidation of the proceedings against the named registrants on the basis that the Domain Names are under common control. The Domain Names were registered with the same Registrar using the same privacy service within a short period. The addresses (and most likely the names) of the named registrants are fake. There is an obvious similarity between the naming patterns of each of the Domain Names, being the replication of the CREDIT MUTUEL Mark (or the CREDIT MUTUEL Mark with the second “e” replaced with an “a”) along with a descriptive word and the gTLD. Finally, there is some evidence (be it the active email servers, the content of the Respondents’ Website, or a warning when attempting to access the inactive websites at the Remaining Domain Names), that each of the Domain Names are being used for phishing of some sort.
Finally, the Panel notes that neither of the Respondents have denied any association with the other or objected to the consolidation of the proceedings requested by the Complainant. The Panel finds that, on the balance of probabilities, the Domain Names are subject to common control and that the consolidation would be fair and equitable to all the Parties. As such, for the purposes of the decision going forward, the Panel will refer to the named registrants of the Domain Names as a single Respondent.
6.2. Substantive Matters
A. Identical or Confusingly Similar
To prove this element the Complainant must have trade or service mark rights and each Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the CREDIT MUTUEL Mark, having registrations for CREDIT MUTUEL as a trademark in France as well as in various other jurisdictions.
Disregarding the gTLD as a necessary element of a domain name, each of the Remaining Domain Names is confusingly similar to the CREDIT MUTUEL Mark as each domain name reproduces both word elements in the CREDIT MUTUEL mark along with one or more descriptive words, and in some cases a hyphen. The Domain Name <mutualcreditfinance.com> is confusingly similar to the CREDIT MUTUEL Mark as it reproduces both word elements in the CREDIT MUTUEL Mark, save that “mutuel” is spelled “mutual” (either a misspelling of the French word or a translation into English) along with a descriptive word.
The Panel finds that each of the Domain Names is confusingly similar to the Complainant’s CREDIT MUTUEL Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain names. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain names.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“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.”
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Names or to seek the registration of any domain name incorporating the CREDIT MUTUEL Mark or a mark similar to the CREDIT MUTUEL Mark. There is no evidence that the Respondent is commonly known by any of the Domain Names or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Names in connection with a legitimate noncommercial use. Indeed the Remaining Domain Names do not resolve to active websites.
Rather it appears from the evidence submitted by the Complainant that the Respondent is using the <mutualcreditfinance.com> Domain Name as part of a broader scheme to obtain customer details illicitly and may be using all the Domain Names to send emails for similar purposes. Such conduct is fraudulent and is not a bona fide offering of goods or services.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Names. The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct amounts to a right or legitimate interest in the Domain Names under the Policy. In the absence of such a response the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) The respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) The respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location (Policy, paragraph 4(b)).
The Panel finds that the Respondent was aware of the Complainant and its reputation in the CREDIT MUTUEL Mark at the time the Domain Names were registered. Given the significant reputation held by the Complainant in the CREDIT MUTUEL Mark, is implausible that an entity would register 10 domain names in a short period each incorporating the word elements in the CREDIT MUTUEL Mark (or minor misspelling) other than in awareness of the Complainant and its CREDIT MUTUEL Mark. The registration of the Domain Names in awareness of the CREDIT MUTUEL Mark and in the absence of rights or legitimate interests amounts under these circumstances to registration in bad faith.
The Respondent is using the <mutualcreditfinance.com> Domain Name to operate website purporting to be an official bank which would mislead consumers. It appears likely that the Respondent is also using each of the Domain Names to send email communications, the nature of which would mislead recipients as to the identity of the sender. Such conduct is deceptive, illegal, and in previous UDRP decisions has been found to be evidence of registration and use in bad faith, see The Coca-Cola Company v. Marcus Steiner, WIPO Case No. D2012-1804.
Even in the event that the Remaining Domain Names, notwithstanding the active email servers, are not being used to send emails, the Panel is prepared to infer that the Domain Names are being used in bad faith. Given the conduct of the Respondent, including the passive holding of the Remaining Domain Names, the use of false contact details and the failure by the Respondent to participate in this proceeding or otherwise provide any explanation of its conduct in registering 10 domain names incorporating the word element from the CREDIT MUTUEL Mark, the Panel finds on the balance of probability that the Domain Names are most likely being held pending sale or for use as websites or email addresses that will misleadingly create an association with the Complainant. As such Panel finds that the passive holding of Remaining Domain Names does not prevent a finding of use in bad faith.
Accordingly, the Panel finds that the Respondent has registered and used the Domain Names in bad faith 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 Domain Names, <client-creditmutuel.com>, <confirm-creditmutuel.com>, <credit-mutuel-adhesion.com>, <credit-mutuel-adhesion-enligne.com>, <credit-mutuel-connexion.com>, <credit-mutuel-home.com>, <espaceclient-creditmutuel.com>, <home-creditmutuel.com>, <mutualcreditfinance.com> and <solution-creditmutuel.com> be transferred to the Complainant.
Date: May 26, 2020