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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Confederation Nationale du Credit Mutuel v. Josh Self

Case No. D2005-1057

 

1. The Parties

The Complainant is Confederation Nationale du Credit Mutuel, France, represented by MEYER & Partenaires, France.

The Respondent is Josh Self, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <creditmutuelonline.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 6, 2005. On October 7, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On, October 7, 2005, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 11, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was October 31, 2005.

The Center appointed Mr. Adam Taylor as the Sole Panelist in this matter on November 11, 2005. 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, which is the second largest banking and insurance group in France, has provided services to more than ten million clients for more than a century. The Complainant has a network of 3100 offices in France managed through 18 regional banks.

The Complainant is involved in every aspect of finance and is, amongst other things, a major player in the supply of services to personal banking customers and in the corporate sector. The Complainant has won awards for its online banking services.

The Complainant is the registered owner of a number of trademarks consisting of or including the wording “CREDIT MUTUEL” in France and abroad including:

“CREDIT MUTUEL”, French semi-figurative trademark No. 475940 of July 8, 1988, classes 35 and 36;

“CREDIT MUTUEL”, French semi-figurative trademark No. 1646012 of November 20, 1990, in classes 16, 35, 36, 38 (Internet services) and 41;

“CREDIT MUTUEL” semi-figurative International trademark No. 570 182 of May 17, 1991, in classes 16, 35, 36, 38 and 41, designating Benelux, Italy and Portugal.

The Complainant’s main website is at “www.creditmutuel.com”.

The Respondent registered the disputed domain name on May 21, 2005.

The Complainant became aware of the registration on June 9, 2005, and sent a cease and desist communication to the Respondent on July 26, 2005. No response was received.

As of October 5, 2005, the disputed domain name resolved to a parking page stating “Welcome to www.creditmutuelonline.com”. The page was branded “MSN Personal Address” and included a prominent hyperlink: “Get your own MSN Personal Address.”

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant is very well known in the field of banking and insurance services. The Complainant’s trademarks have been continuously used in commerce since their registration. As a consequence, it is indisputable that the Complainant has trademark rights in the words CREDIT MUTUEL.

The disputed domain name is confusingly similar to its trademark “CREDIT MUTUEL”.

First, the trademark “CREDIT MUTUEL” is entirely reproduced in the disputed domain name. The absence of spaces in the disputed domain name has to be ignored in assessing the question of identity or confusing similarity.

Second, the domain name combines the Complainant’s trademark with the generic word ONLINE meaning “someone who is connected to Internet, to a website”.

In fact, the combination of “CREDIT MUTUEL” with the word “ONLINE” does not eliminate the risk of confusion with the Complainant’s trademark “CREDIT MUTUEL”, which is the only distinctive element of the domain name in dispute.

The case law shows that the mere addition of a generic or descriptive term to an otherwise distinctive or well-known trademark does not serve to distinguish the domain name from the Complainant’s trademark.

On the contrary, this combination suggests that the disputed domain name refers to the French banking group. A consumer visiting the Respondent’s site will expect to find online banking services of the Complainant.

The risk of confusion is all the more likely as the Complainant is providing online banking services to its customers.

Rights or Legitimate Interests

The Respondent has no rights or legitimate interests in respect of the disputed domain name.

The Respondent is not connected in any way to the Complainant’s business. He is not one of its agents and does not carry out any activity for, or has any business with it. The Complainant has granted no licence or authorization to the Respondent to use, nor apply for, registration of the disputed domain name.

The Respondent is not currently and has never been known under the name CREDIT MUTUEL or under the combination of this trademark with the word ONLINE.

The disputed domain name has been registered by the Respondent to take advantage of the fame of the Complainant’s trademark to confuse and divert Internet users.

As a matter of fact, the Respondent has not engaged in any action that shows he has right or legitimate interests in the disputed domain name. Moreover, by not responding to the cease and desist letter sent by the Complainant on July 26, 2005, the Respondent admits that he has no rights or legitimate interests in the disputed domain name.

Registered and Used in Bad Faith

It is difficult to imagine that the Respondent could have been unaware of the trademark “CREDIT MUTUEL” when he applied for registration of the disputed domain name.

The disputed domain name combines the Complainant’s trademark with the generic wording “online”, which describes a part of the Complainant’s activities.

In registering the disputed domain name, there is no doubt that the Respondent had the Complainant in mind.

The Respondent registered the domain name for the only purpose of taking advantage of Internet traffic from Internet users seeking the Complainant’s products and services on the Internet.

Moreover the disputed domain name prevents the Complainant from reflecting its online banking services activity in a corresponding domain name under the top level domain “.com”.

The Respondent uses the disputed domain name to divert Internet users to a parking webpage provided by MSN online messenger service. By clicking on the hyperlink “Get your own personal address”, Internet users are directed to a MSN Premium services webpage on which they can buy their MSN address by paying an amount of $34.95 per year.

This activity generates traffic to the benefit of MSN and might generate revenue for the Respondent. It would be irrelevant if the Respondent were to say that the activity on the disputed domain name were not controlled by him but by a parking or other affiliate program.

As a matter of fact, the Respondent is not making any legitimate non-commercial or fair use of the disputed domain.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel accepts the Complainant’s contention that it has generated substantial common law rights in the term CREDIT MUTUEL deriving from its extensive use of that name for over a century.

The disputed domain name includes the Complainant’s trademark in its entirety, together with the generic word “online”. This additional generic term fails to dispel the connection between the domain name and the trademark; indeed it reinforces the link as the word “online” denotes an aspect of the services supplied by the Complainant. The disputed domain name is therefore confusingly similar to the Complainant’s CREDIT MUTUEL trademark. It is well-established that domain suffixes are disregarded for the purpose of this comparison.

The disputed domain name is also confusingly similar to the Complainant’s registered device trademarks. The term CREDIT MUTUEL is by far the most prominent feature of those trademarks.

The Panel concludes that the disputed domain name is confusingly similar to trademarks in which the Complainant has rights.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides examples of circumstances that can demonstrate the existence of rights or legitimate interests in a domain name: (i) use of, or preparations to use, a domain name in connection with a bona fide offering of goods or services; (ii) the fact that a respondent has commonly been known by a domain name; and (iii) legitimate non-commercial or fair use of a domain name, without intent for commercial gain to mislead consumers or tarnish the trademark.

The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. D2003-0070.

The Complainant has not licensed or otherwise authorized the Respondent to use its trademarks.

As to paragraph 4(c)(i) of the Policy, the only use of the disputed domain name which has been brought to the Panel’s attention is as an “MSN Personal Address” parking page. The Respondent has not submitted a response to deny the Complainant’s assertions concerning the inappropriate nature of such use of the Complainant’s trademark or to explain why the disputed domain name was used for such a service when there is no obvious connection between them. Indeed, the Panel has concluded below that the Respondent used the disputed domain name to profit by creating a likelihood of confusion with the Complainant’s trademark. In these circumstances the Respondent’s offering could not be said to be bona fide.

There is no evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply.

The Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.

The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The disputed domain name consists of the Complainant’s trademark plus the word “online” which clearly denotes an aspect of the Complainant’s services. The Panel infers from this that the Respondent registered the disputed domain name with the Complainant in mind. Indeed the Respondent has not come forward to suggest otherwise.

The Panel is of the view that the Respondent intentionally attracted for commercial gain internet users to its website by trading on the goodwill associated with the CREDIT MUTUEL trademark and creating a likelihood of confusion with that trademark (paragraph 4(b)(iv) of the Policy). In the absence of any other credible explanation from the Respondent, the Panel considers that the use of the disputed domain name as an “MSN Personal Address” parking page was designed to generate profit for the Respondent by attracting customers seeking the Complainant.

The likelihood of confusion is not diminished by the fact that users arriving at that page will realize that they have reached the wrong destination. Paragraph 4(b)(iv) of the Policy is concerned with the intentional attracting of Internet users. Here, the Respondent used the disputed domain name to create “initial interest confusion” on the part of Internet users seeking the Complainant and in order to profit from at least some of that traffic. See, e.g., National Football League Properties, Inc. and Chargers Football Company v. One Sex Entertainment Company, a/k/a ChargerGirls.net, WIPO Case No. D2000-0118 and Jardine Motors Group Holdings Limited v. Zung Fu Kuen, WIPO Case No. D2004-0168.

The Panel concludes that the disputed domain name was registered and has been used in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <creditmutuelonline.com> be transferred to the Complainant.


Adam Taylor
Sole Panelist

Dated: November 25, 2005

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1057.html

 

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