WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Confédération Nationale du Crédit Mutuel v. Aydin Genc

Case No. D2021-3313

1. The Parties

The Complainant is Confédération Nationale du Crédit Mutuel, France, represented by MEYER & Partenaires, France.

The Respondent is Aydin Genc, Turkey.

2. The Domain Name and Registrar

The disputed domain name <mutecredit.biz> is registered with Sav.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 6, 2021. On October 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 11, 2021, 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, 2021, 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 amendment to the Complaint on October 15, 2021.

The Center verified that the Complaint together with the amendment to 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 the Respondent of the Complaint, and the proceedings commenced on October 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 30, 2021.

The Center appointed Luca Barbero as the sole panelist in this matter on December 17, 2021. 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 political and central body for the banking group Crédit Mutuel, which is the second banking and insurance services group in France and has been providing its services to 12 million clients for more than a century via a network of 3178 offices, located in 18 regional federations.

The Complainant is the owner of several trademark registrations for CRÉDIT MUTUEL, including the following, as per trademark certificates submitted as Annexes E to the Complaint:

- European Union trademark registration No. 18130616 for CRÉDIT MUTUEL (word mark), filed on September 30, 2019 and registered on September 2, 2020, in classes 7, 9, 16, 35, 36, 38, 41 and 45;

- European Union trademark registration No. 18130619 for CRÉDIT MUTUEL (figurative mark), filed on September 30, 2019 and registered on May 22, 2020, in classes 7, 9, 16, 35, 36, 38, 41 and 45;

- European Union trademark registration No. 16130403 for CRÉDIT MUTUEL (figurative mark), filed on December 05, 2016 and registered on June 1, 2017, in classes 7, 9, 16, 35, 36, 38, 41 and 45;

- European Union trademark registration No. 5146162 for CRÉDIT MUTUEL LA BANQUE À QUI PARLER (figurative mark), filed on June 19, 2006 and registered on August 23, 2007, in classes 9, 16, 35, 36, 37, 38, 39, 41, 42, 43, 44 and 45;

- French trademark registration No. 1646012 for CRÉDIT MUTUEL (figurative mark), filed on November 20, 1990, in classes 16, 35, 36, 38 and 41;

- French trademark registration No. 1475940 for CRÉDIT MUTUEL (figurative mark), filed on July 8, 1988, in classes 35 and 36;

The Complainant is also the owner of the domain names <creditmutuel.com>, registered on October 28, 1995, and <creditmutuel.fr>, registered on August 9, 1995, both used by the Complainant to promote its services under the trademark CRÉDIT MUTUEL.

The disputed domain name was registered on August 18, 2021 and, according to the screenshots submitted as Annexes H to the Complaint, resolved to a Turkish pornographic website. At the time of the drafting of the Decision, the disputed domain name is pointed to a blank page.

5. Parties’ Contentions

A. Complainant

The Complainant contends that disputed domain name is confusingly similar to the trademark CREDIT MUTUEL in which the Complainant has rights as it reproduces a misspelled version of the Complainant’s mark with the mere deletion of the letters “u” and “l” in the word “mutuel”, the inversion of the words “credit” and “mut(u)e(l)” and the generic Top-Level Domain “.biz”.

With reference to rights or legitimate interests in respect of the disputed domain name, the Complainant states that the Respondent is not commonly known by the disputed domain name, that it was in no way licensed or authorized by the Complainant and that there is no known relationship of any kind between the Complainant and the Respondent that could justify the Respondent’s registration and use of the disputed domain name.

Moreover, the Complainant underlines that, considering the disputed domain name resolved to a Turkish pornographic website, the Respondent has also failed to prove that it was making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.

With reference to the circumstances evidencing bad faith, the Complainant indicates that the Respondent, by registering a domain name imitating the Complainant’s well-known trademark CREDIT MUTUEL, has been unfairly trading on the Complainant’s valuable goodwill established in such trademark.

The Complainant further claims that the Respondent likely registered the disputed domain name for the purpose of intentionally attracting Internet users to its website, by creating a likelihood of confusion among customers and tarnishing the Complainant’s trademark CREDIT MUTUEL for commercial gain.

Moreover, the Complainant emphasizes that the use the Respondent has made of the disputed domain name is, in itself, further indication of bad faith registration and proves the Respondent has also failed to make a legitimate noncommercial or fair use of the disputed domain name.

Lastly, the Complainant points out that, as a banking group, it has continually to face counterfeiting and phishing attempts. Therefore, the Complainant “has to prevent a new fake of its website and to protect in the meantime its clients from counterfeiting and fraud”.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 15(a) of the Rules: “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.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) that the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has established rights over the trademark CRÉDIT MUTUEL based on the trademark registrations cited under section 4 above and the related trademark certificates submitted as Annexes E to the Complaint.

It is well accepted that the first element functions primarily as a standing requirement, and that the threshold test for confusing similarity involves a reasoned but relatively straightforward comparison between a complainant’s trademark and the disputed domain name to assess whether the trademark is recognizable within the disputed domain name (section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).

In the case at hand, the Panel notes the disputed domain name reproduces the trademark CRÉDIT MUTUEL almost entirely, with the omission of the accent from the letter “e” in the word “credit” and of the letters “u” and “l” in the word “mutuel”, the inversion of the words “credit” and “mut(u)e(l)” and the addition of the generic Top-Level Domain “.biz”, which can be disregarded being a mere technical requirement for registration.

The Panel finds that the omission of the accent and of the letters “u” and “l” and the inversion of the words “credit” and “mut(u)e(l)” are not sufficient to distinguish the disputed domain name from the Complainant’s trademark and may be interpreted as a misspelled version of the Complainant’s trademark.

As stated in Section 1.9 of the WIPO Overview of WIPO Overview 3.0, “a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”.

As to the deletion of the accent, see, inter alia, Société des Produits Nestlé S.A. v. Wen Jianhui (温建辉), WIPO Case No. D2019-3181 (<nestle.store>): “The disputed domain name wholly incorporates the NESTLÉ trademark. The disputed domain name does not display the accent above the final “e” in the trademark but, visually, this difference is so minor that it does not dispel confusing similarity between the disputed domain name and the trademark”. With regard to the inversion of the terms encompassed in the trademark, see Confédération Nationale du Crédit Mutuel v. GARR Garderie, WIPO Case No. D2018-1871 (<mutuelcreditinvest.com>): “The Complainant has provided evidence that it has rights in the Trademarks well before the Respondent registered the disputed domain name. In comparing the disputed domain name <mutuelcreditinvest.com> with the Trademarks, the Panel finds that the verbal elements of the Trademarks are replicated in their entirety in the disputed domain name, the latter simply differing by an inversion of ‘credit’ and ‘mutuel’ and by the addition of the term ‘invest’.The Panel considers that the sole inversion of “credit” and “mutuel” in the disputed domain <mutuelcreditinvest.com> does not prevent the confusing similarity between the disputed domain name and the Complainant’s trademark”. With regard to the deletion of letters encompassed in Complainant's trademark, see VRL International Ltd. v. Domaincar, WIPO Case No. D2006-0240, where the deletion of letter ‘s’ in the domain name <superclubbreeze.com> was found not to alter the confusing similarity between the domain name and the complainant’s trademark SUPERCLUBS BREEZES.

Therefore, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to a trademark in which the Complainant has established rights according to paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent may establish a right or legitimate interest in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:

“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the disputed 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 disputed domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate non-commercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

In the case at hand, by not submitting a Response, the Respondent has failed to invoke any circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name.

Moreover, it has been repeatedly stated that when a respondent does not avail himself of its right to respond to a complaint, it can be assumed in appropriate circumstances that the respondent has no rights or legitimate interests in the disputed domain name.

The Panel notes that there is no relation, disclosed to the Panel or otherwise apparent from the record, between the Respondent and the Complainant. The Respondent is not a licensee of the Complainant, nor has the Respondent otherwise obtained an authorization to use the Complainant’s trademarks.

Furthermore, there is no indication before the Panel that the Respondent is commonly known by the disputed domain name, has made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, or that it intends to make a legitimate, noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s trademark.

On the contrary, the Respondent has used the disputed domain name, confusingly similar to the Complainant’s prior trademark, to increase Internet user traffic to its pornographic website at “www.mutecredit.biz”, as shown in the screenshots submitted as Annexes H to the Complaint. Previous UDRP Panels have found that use of a domain name identical or confusingly similar to a trademark to attract or divert Internet traffic to a website featuring pornographic content is not a bona fide use and does not confer rights or legitimate interests in the domain name. See Accolade 2ndMd LLC v. Hallie Kubik, WIPO Case No. D2021-1162; William Hill Organization Limited v. Netmax Multimedia, WIPO Case No. D2001-0455; and Nintendo of America Inc. v. Baltic Consultants Limited, WIPO Case No. D2002-0449. In addition, the Panel notes that there is no evident connection between the terms “mute credit” and a pornographic website.

Therefore, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in the disputed domain name according to paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the purpose of paragraph 4(a)(iii) of the Policy, 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 the disputed domain name in bad faith:

(i) circumstances indicating that the Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the disputed domain name; or

(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trademark 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 disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s 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 holder’s website or location or of a product or service on the holder’s website or location.

The Panel finds that, in light of the prior registration and use of the Complainant’s trademark CREDIT MUTUEL in connection with the Complainant’s financial services, also online via the Complainant’s website “www.creditmutuel.com”, and considering the well-known character of the Complainant’s trademark, the Respondent was or ought to be aware of the Complainant’s trademark at the time of registration of the disputed domain name, with which it is confusingly similar.

In light of the misspelling of the Complainant’s trademark in the disputed domain name, i.e. the omission of an accent from the term “credit” and of two letters from the word “mutuel” in the Complainant’s trademark and the inversion of the resulting words “credit” and “mute”, the Panel finds that the Respondent engaged in typosquatting, which constitutes additional evidence of bad faith registration. See, along these lines, Manheim Auctions Inc. v. Whois ID Theft Protection, WIPO Case No. D2006-1044; and Allied Building Products Corp v. Alliedbuildingproducts.com c/o Whois Identity Shield, WIPO Case No. D2006-0833. In addition, an alternative explanation for the registration of the disputed domain name neither has been provided, nor is evident to the Panel, nor can be reasonably inferred from the use of the disputed domain name that could lead to a conclusion different from a finding of Respondent’s bad faith.

With reference to the use of the disputed domain name in connection with a pornographic website – as highlighted by the screenshots submitted as Annexes H to the Complaint –, the Panel finds that this is an example of “porno-squatting”, in which confusion with a well-known trademark is used to divert customers to a pornographic website for commercial purposes. As stated inter alia in Prada S.A. v. Roberto Baggio, WIPO Case No. D2009-1187 (<pradatube.com>), “Porno-squatting' constitutes a paradigm case of registration in bad faith”. Moreover, the composition of the disputed domain name and its use for a pornographic website, along with the lack of an explanation by the Respondent, leads the Panel to consider that there is a risk of tarnishment.

In view of the Respondent’s use of the disputed domain name, the Panel concludes that the Respondent intentionally attempted to attract Internet users to its website, for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of its website and the services provided therein, according to paragraph 4(b)(iv) of the Policy.

Lastly, the Panel notes that the disputed domain name is now inactive. In any event, the non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding. See Confédération Nationale du Crédit Mutuel v. GARR Garderie, Supra.; and Section 3.3 of the WIPO Overview 3.0.

Therefore, the Panel finds that the Complainant has also proven that the Respondent registered and has been using the disputed domain name in bad faith according to paragraph 4(a)(iii) of the Policy.

7. Decision

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 <mutecredit.biz> be transferred to the Complainant.

Luca Barbero
Sole Panelist
Date: December 31, 2021