WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Boursorama S.A. v. Metodi Darzev, Tool Domains Ltd
Case No. DNU2019-0003
1. The Parties
The Complainant is Boursorama S.A., France, represented by Nameshield, France.
The Respondent is Metodi Darzev, Tool Domains Ltd, Bulgaria, represented by Petar Ivanov, Bulgaria.
2. The Domain Name and Registrar
The disputed domain name <boursorama.nu> is registered with Hosting Concepts B.V. d/b/a Openprovider (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2019. On October 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 18, 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 and contact information for the disputed domain name.
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 October 22, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 11, 2019. The Response was filed with the Center on October 24, 2019.
The Center appointed Marilena Comanescu as the sole panelist in this matter on October 30, 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.
The language of the proceeding is English.
4. Factual Background
The Complainant is a European company founded in 1995. The Complainant has three core activities: online brokerage, financial information on the Internet and online banking. According to the Complainant’s assertions, in France, Boursorama is the first online banking platform with over 1,9 milion customers.
The Complainant is the owner of the European Union Trademark BOURSORAMA with registration number 001758614, filed on July 13, 2000 and registered on October 19, 2001, for goods and services in IC 9, 16, 35, 36, 38, 41 and 42.
The Complainant holds and uses a number of Internet domain name registrations which wholly incorporate the BOURSORAMA mark, the main one being <boursorama.com> registered on March 1, 1998.
The disputed domain name was registered on October 16, 2019, and, according to the evidence provided in the Complaint, at the time of filing the Complaint it was used in connection with a parking page with commercial links related particularlyto the Complainant and its activities. Also, on the website corresponding to the disputed domain name there was an advertising, in French, stating that the disputed domain name was for sale.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical to its well-known trademark BOURSORAMA, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith.
The Respondent submitted a response asking the Panel to deny the remedies requested by the Complainant, listing each element of the Policy and providing mere statements that the disputed domain name is not identical to the Complainant’s trademark, that the Respondent has rights and justified interests in the disputed domain name and that it did not register and use the disputed domain name in bad faith, claiming that none of the circumstances listed by paragrapgh 4(b) of the Policy are applicable in the present case. No detailed arguments or explanations, nor supporting evidence were provided.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant can succeed in an administrative proceeding under the Policy if the following circumstances are cumulatively met:
(i) the disputed 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 the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will further analyze the potential concurrence of the above circumstances.
A. Identical or Confusingly Similar
The disputed domain name reproduces the Complainant’s trademark with no addition or alteration at the second-domain level portion.
Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) (e.g., “.net”, “.info”, “.com”, “.org”) or country code Top-Level Domain (“ccTLD”) (e.g., “.nu”, “.ro”, “.it”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <boursorama.nu> is identical to the Complainant’s trademark BOURSORAMA, for the purpose of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant asserts that the Respondent does not hold any trademark rights, license or authorization whatsoever to use the mark BOURSORAMA, that the Respondent is not commonly known by the disputed domain name and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services.
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 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. See section 2.1 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Here, the Respondent simply denied the Complainant’s allegations and did not provide any explanation for choosing the disputed domain name and thus to come forward with relevant evidence to rebut the Complainant’s prima facie case.
There is nothing in the record suggesting that the Respondent has ever been commonly known by the disputed domain name or that it is making a noncommercial or fair use of it.
Further, there is no evidence that the Respondent used or made preparations to use the disputed domain name in connection with a bona fide offering of goods or services. According to evidence in the file, the Respondent has used the disputed domain name for parking pages and to offer it for public sale.
Panels have constantly found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s marks or otherwise mislead Internet users. See section 2.9 of theWIPO Overview 3.0.
Also, the general offer to sell a domain name was found, in the most cases, as a credible evidence that respondent laked rights or legitimate interests in the disputed domain name.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant holds trademark rights since 2000 and it gained reputation in its field of activity. The disputed domain name was created in 2019 and reproduces the Complainant’s mark. For the above, the Panel finds that the disputed domain name was registered in bad faith, knowing the Complainant and targeting its trademark.
At the time of filing the Complaint the disputed domain name resolved to a parking page providing links apparently related to the Complainant.
Paragraph 4(b)(iv) of the Policy provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location” is evidence of registration and use in bad faith.
The Respondent was using without permission the Complainant’s distinctive trademark in order to get traffic on its web portal and to obtain commercial gain from the false impression created for Internet users with regard to a potential affiliation or connection with the Complainant.
Also, paragraph 4(b)(i) of the Policy lists a circumstance of bad faith registration and use when the respondent has acquired the domain name primarily for the purpose of selling or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or to a competitor of that complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name.
The disputed domain name is identical to the Complainant’s reputable trademark. At the time of filing the Complaint on the website corresponding to the disputed domain name there was an add in French language, where the Complainant has significant presence for two decades, offering the disputed domain name to public sale. Such use is, along with the other factors in this case, an evidence of bad faith use.
The Response is merely declarative, there is no explanation or evidence to provide arguments in the Respondent’s favor.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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.nu> be transferred to the Complainant.
Date: November 13, 2019