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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Banque Fédérale des Banques Populaires v. Oscar Escamilla
Case No. D2002-0686
1. The Parties
The Complainant in this administrative proceeding is Banque Fédérale des Banques Populaires ("Complainant"), a corporation organized and existing under the laws of France, with its principal place of business at Le Ponant de Paris, 5, rue Leblanc, Paris, France. Complainant's authorised representative is Cabinet Regimbeau, 20 rue Chazelles, 75847 Paris Cedex 17, France.
According to the Registrar's WHOIS database, the Respondent in this administrative proceeding is Oscar Escamilla, with an address in Apartado de Correos 757, Terrassa 08220, Spain.
2. The Domain Name and Registrar
The domain name at issue is <banquepopulaire.info> ("Domain Name"), registered with Domain Registration Services, Inc. dba dotEarth.com at PO Box 447, Palmyra NJ 08065, United States of America.
3. Procedural History
A complaint ("Complaint"), pursuant to the Uniform Domain Name Dispute Resolution Policy, implemented by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999, ("Policy"), and under the Rules for Uniform Domain Name Dispute Resolution Policy, implemented by ICANN on the same date ("Rules"), was submitted to the WIPO Arbitration and Mediation Center (the "Center") on July 22, 2002, by e-mail.
The Acknowledgement of Receipt of Complaint was submitted to the Complainant by the Center on July 22, 2002.
On July 22, 2002, a Request for Registrar Verification was transmitted to the Registrar, which confirmed on July 29, 2002, with its Verification Response that the disputed Domain Name was registered with dotearth.com and that Respondent, Oscar Escamilla, was the current registrant of the disputed Domain Name.
On July 30, 2002, the Center sent a Complaint Deficiency Notification to Complainant due to the fact that by this date the Complaint was only received by e-mail and not in hardcopy. The hardcopy of Complaint in one original and four copies, as required by the Rules, Paragraph 3(b) and the Supplemental Rules, Paragraph 3(c), was received on August 1, 2002. The Center submitted its Acknowledgement of Receipt of the hardcopy of Complaint on August 2, 2002.
No further formal deficiencies were recorded by the Center Case Manager when completing a Formal Requirements Compliance Checklist on August 1, 2002.
The Panel independently determines and agrees with the assessment of the Center that the Complaint is in formal compliance with the applicable requirements.
A Notification of Complaint and Commencement of Administrative Proceeding ("Commencement Notification") was transmitted to the Respondent on August 2, 2002, setting a deadline of August 22, 2002, by which the Respondent could file a response to the Complaint.
Since Respondent failed to submit any response to the Complaint within the set time-limit, a Notification of Respondent Default was sent by the Center to Respondent on August 23, 2002. The Panel would like to note that Respondent has until today failed to file any form of response to the Complaint.
Complainant requested a single-member panel. Since Respondent did not file a response, the Center invited the undersigned to serve as sole panelist in WIPO Case No. D2002-0686 and transmitted to him a Statement of Acceptance and Request for Declaration of Impartiality and Independence which was duly signed and returned to the Center on September 3, 2002.
The Center transmitted to the parties on September 4, 2002, a Notification of Appointment of Administrative Panel and Projected Decision Date as of September 18, 2002. The Administrative Panel finds that it was properly constituted and appointed in accordance with the Policy, the Rules and the WIPO Supplemental Rules.
4. Factual Background
The following facts and statements appear from the Complaint and its annexed documents which have not been contested by Respondent:
Complainant is the central company of the Banques Populaires Group, representing a network of more than 2000 agencies located not only in France, but also in other countries of the world, notably Spain, through its international branch Pramex. The Banques Populaires have been created by the French Law of March 13, 1917, since modified and completed, and now incorporated in the Code Monétaire et Financier.
The protection of the Banque Populaire mark results from Article L. 571-10 of the French Code Monétaire et Financier which provides that whoever, apart of entities mentioned at Article L. 512-2, uses in any way the title or qualification "banque populaire", will be punished with the penalties of article 313-1 of the Penal Code.
Complainant owns numerous registrations (French Trademark and Community Trademark) for BANQUE POPULAIRE, or for BANQUE POPULAIRE combined with other words related to its services; In France, Reg. No. 3113485 and 3113488 in classes 36 and 38 since July 25, 2001; Community Trademark No. 000863886 in Class 16 since September 14, 1999.
Complainant is the owner, inter alia, of the Domain Names <banquepopulaire.biz>, <banquepopulaire.fr> and <banquepopulaire.net>, the latter two leading to Banque Populaire’s official web site, <banquepopulaire.fr>.
The disputed Domain Name <banquepopulaire.info> was registered by Respondent on October 9, 2001. The Domain Name is pointing to a web page that says "welcome to the website of "www.banquepopulaire.info" - please check back often". Complainant believes that this is a default page provided by Registrar and concludes that Respondent is not making any use of the disputed Domain Name.
On March 28, 2002, Complainant sent a cease and desist letter to Respondent and offered an amicable settlement to the dispute by reimbursing the Respondent for the registration and transfer fees. Respondent sent the reception receipt on April 11, 2002. However, Complainant’s counselors have not heard from Respondent.
5. Parties’ Contentions
Complainant contends that:
- the Domain Name is identical to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the Domain Name; and
- the Domain Name was registered and is being used in bad faith; and
- the Domain Name <banquepopulaire.info> should be transferred to the Complainant.
Additional respective contentions of the Complainant are contained in the following discussions and findings.
As mentioned above, Respondent has been notified in accordance with paragraph 2(a) of the Rules, but failed to submit a response in accordance with the requirements under the Policy. Thus, Complainant's allegations are deemed to be non contested.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
"(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith."
Identical or confusingly similar Domain Name: Policy 4(a)(i)
The domain name at issue is <banquepopulaire.info>. As seen above, Complainant is the holder of the registered trade mark "banque populaire", which obviously is identical with the disputed Domain Name. The trademark is exactly copied in the Domain Name and apart from the top level domain ending ".info", the disputed Domain Name is identical to the Domain Names Complainant uses to market its products and services on the Internet (<banquepopulaire.net>, <banquepopulaire.fr>, <banquepopulaire.biz>, etc.).
In any event, Respondent does not contest this point.
The Panel holds that the Complainant has readily met the burden of proof as established by subparagraph (i) of the Policy's paragraph 4(a).
Respondent's Rights or Legitimate Interests in the Domain Name: Policy 4(a)(ii)
It is first convenient to recall that, according to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
"(i) before any notice to you [Respondent] 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 [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trade mark or service mark rights; or
(iii) you [Respondent] 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 trade mark or service mark at issue."
Respondent has not provided any evidence of legitimate rights or interests in the above sense, and has not shown any other circumstances reflecting a right or legitimate interest in the disputed Domain Name.
Respondent failed to submit any proof of the fact that he, as an individual, business, or other organization, has been commonly known by the Domain Name, and to this Panel’s knowledge the Respondent is not presently conducting activities under the name "banque populaire". In any event, due to the fact that the Domain Name never has been and still is not in use for any bona fide offering of goods or services, or for any other legitimate noncommercial or fair use of the Domain Name, such proof would be difficult.
Complainant asserts that Respondent has no business or any other connection or affiliation with Complainant. There is no legal and/or business relationship between Respondent and Complainant that might indicate that the Respondent has any right, title or share in the denomination BANQUE POPULAIRE, as provided by the 1907 French Law (see above).
Hence, in the absence of any indications as to a legitimate interest of Respondent to use the Domain Name, the Panel finds that Complainant has fulfilled its burden of proof under paragraph 4(a)(ii) of the Policy.
Domain Name Registered and Used in Bad Faith: Policy 4(a)(iii)
The third element to be established by Complainant is that the Domain Name has been registered and used in bad faith.
Paragraph 4(b) states the following four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the Domain Name:
"(i) circumstances indicating that you [Respondent] have registered or you [Respondent] have 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 that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Domain Name.; or
(ii) you [Respondent] have 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 you have engaged in a pattern of such conduct; or
(iii) you [Respondent] have registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or your location."
Complainant alleges that Respondent registered and used the Domain Name in bad faith.
In WIPO Case No. D2000-0003 (<telstra.org>), paragraphs 7.9 to 7.11, as well as in other WIPO decisions, it was ascertained that a passive holding of a domain name may on its own be sufficient to constitute bad faith, taking into consideration the overall context of Respondent's behavior. In the present case, the following circumstances seem relevant in this respect: Complainant's trademark is well known in France and also throughout Europe. Since Respondent’s residence is Spain, a neighboring country to France, Respondent must have known by the time of registration of the Domain Name, that Banque Populaire is one of the largest banking networks in France. Furthermore, Respondent provided no evidence of any good faith use of the disputed Domain Name, and failed to answer when being contacted by Complainant.
Hence, in an overall assessment of the contentions and the facts mentioned above, the Panel concludes that the requirements of paragraph 4(a)(iii) of the Policy have been sufficiently made out by the Complainant, and that Respondent's bad faith registration and use of the Domain Name has been proven.
In view of the circumstances and facts discussed above, the Panelist decides that the disputed Domain Name is identical to the registered trade mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent's Domain Name has been registered and is being used in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Policy, the Panelist requires that the disputed Domain Name, <banquepopulaire.info>, shall be transferred to the Complainant.
Bernhard F. Meyer-Hauser
Dated: September 17, 2002