WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Boursorama S.A. v. Jun Yin

Case No. DCO2019-0043

1. The Parties

The Complainant is Boursorama S.A., France, represented by Nameshield, France.

The Respondent is Jun Yin, China.

2. The Domain Name and Registrar

The disputed domain name <boursorama-banque.co> is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 5, 2019. On November 5, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 6, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

On November 7, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on November 7, 2019. The Respondent did not comment on the language of the proceeding.

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 the Respondent of the Complaint, and the proceedings commenced on November 15, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 16, 2019.

The Center appointed Douglas Clark as the sole panelist in this matter on December 26, 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 an online financial services provider based in France and provides online banking services for 1.9 million customers.

The Complainant is the proprietor of European Union trademark BOURSORAMA registration No. 001758614 registered since October 19, 2001. It also owns a number of domain names incorporating BOURSORAMA.

The Respondent is an individual based in China.

The disputed domain name was registered on October 28, 2019. It resolves to a parking page with links for financial and other services.

5. Parties’ Contentions

A. Complainant

The Complainant’s contentions are as follows:

Identical or confusingly similar

The Complainant contends that the disputed domain name <boursorama-banque.co> is confusingly similar to the Complainant’s registered trademark BOURSORAMA. The inclusion of a non-distinctive and/or descriptive term “banque”, which means “bank”, and the addition of the generic Top-level Domain (“gTLD”) do not avoid the finding of confusing similarity.

No rights or legitimate interests

The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any license or trademark registration for BOURSORAMA.

The disputed domain name was registered and is being used in bad faith.

Before acquiring the disputed domain name, the Respondent knew of the Complainant’s rights in the BOURSORAMA mark because of its distinctive character.

B. Respondent

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

6. Discussion and Findings

6.1 Language of proceedings

The language of the Registration Agreements is in Chinese. Paragraph 11(a) of the Rules provides that:

“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”

The Complainant requested the language of the proceeding be English on the grounds that English is the language of international commerce, the disputed domain name is in Roman script, and if the Complainant were to translate documents in Chinese, the Complainant would incur unnecessary expense and the proceedings may be delayed.

The Center made a preliminary determination to:

1) accept the Complaint as filed in English;

2) accept a Response in either English or Chinese;

3) appoint a Panel familiar with both languages mentioned above, if available.

The final determination of the language of the proceeding lies with this Panel.

On the facts of this case, the Panel does not consider it appropriate to require the Complainant to translate the Complaint as it will unnecessarily delay the proceeding. This is a clear case of cybersquatting that the Policy was designed to stop.

Further, the Respondent did not respond to the Center’s preliminary determination. This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”.

The Panel will render its decision in English.

6.2 Substantive Issues

A. Identical or Confusingly Similar

The disputed domain name <boursorama-banque.co> is confusingly similar to the Complainant’s BOURSORAMA trademark.

The disputed domain name incorporates the Complainant’s registered trademark BOURSORAMA together with the term “banque”. According to previous UDRP decisions, the “addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.” (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).

The Panel notes that the Complainant does not rely on any registered trademarks for BOURSORAMA in China where the Respondent is located. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview 3.0).

The first element of paragraph 4(a) of the Policy is therefore satisfied.

B. Rights or Legitimate Interests

The Respondent has not responded to the Complaint to assert any rights or legitimate interests.

Section 2.1 of the WIPO Overview 3.0 provides:

“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”

The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.

The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.

Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.

The second element of paragraph 4(a) of the Policy is therefore satisfied.

C. Registered and Used in Bad Faith

The Panel finds that the disputed domain name <boursorama-banque.co> was registered in bad faith and is being used in bad faith.

This case falls with paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:

“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”

The Respondent has registered the disputed domain name that contain the Complainant’s BOURSORAMA mark in its entirety. The disputed domain name resolves to a website with pay-per-click commercial links for services competitive with the Complainant. This indicates the Respondent’s intention to confuse Internet users that the Website is linked to the Complainant’s business. Such use is clearly intended to create confusion with for Internet users.

The third part of paragraph 4(a) of the Policy is therefore satisfied.

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 <boursorama-banque.co> be transferred to the Complainant.

Douglas Clark
Sole Panelist
Date: December 31, 2019