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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Confederation Nationale du Credit Mutuel v. George Kershner

Case No. D2006-0248

 

1. The Parties

The Complainant is Confederation Nationale du Credit Mutuel, Paris, France, represented by Meyer & Partenaires, Strasbourg, France.

The Respondent is George Kershner, New York, New York, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <creditmutuelweb.com> is registered with Melbourne IT trading as Internet Names Worldwide.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 28, 2006. On March 1, 2006, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On March 2, 2006, Melbourne IT trading as Internet Names Worldwide 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 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 March 10, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 30, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default April 4, 2006.

The Center appointed Mr. Keiji Kondo as the sole panelist in this matter on April 21, 2006. 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 the second largest French banking and insurance service group, providing services to more than ten million clients for more than a century.

The Complainant consists of a network of 3100 offices in France managed through 18 regional banks.

Present in every field of finance, the group is a known player in the market of personal banking and in the corporate sector. Its main priority is to provide services to its members and customers.

The Complainant ranks as the number one bank for on-line banking services on the TNS Sofres award.

The Complainant is the registered owner of a large number of trademarks consisting of or including the words “CREDIT MUTUEL” in France and abroad. The Complainant is, for instance, the registered owner of the following trademarks:

CREDIT MUTUEL, French semi-figurative trademark n° 1475940 of July 8, 1988 classes 35 and 36 of 1957 Nice Agreement, renewed on May 15, 1998;

CREDIT MUTUEL, French semi-figurative trademark n° 1646012 of November 20, 1990, in classes 16, 35, 36, 38 (Internet services) and 41 of Nice Agreement, renewed on November 20, 2000;

CREDIT MUTUEL semi-figurative International trademark n° 570 182 of May 17, 1991 in classes 16, 35, 36, 38 and 41 of Nice Agreement, designating Benelux, Italy and Portugal.

The Complainant operates a web portal under the uniform resource locator “http://www.creditmutuel.com”, dedicated to its products and services and providing a lot of information to the public about financial matters.

The Complainant is well known in the fields of banking and insurance services, at least in France.

On August 22, 2005, the Complainant was informed that the Respondent had registered, on July 5, 2005, the domain name <creditmutuelweb.com>.

The Complainant first tried to settle the matter amicably, by sending a cease and desist letter (by postal mail and e-mail) through its trademark attorneys to the Respondent. No error message was received by the Complainant after he sent this letter by e-mail on September 29, 2005, although the letter sent by postal mail was not delivered because the address was “unknown.” The Complainant did not receive any answer it.

Consequently, the Complainant decided to submit this matter to the Center.

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

In the present case, the Complainant claims that the domain name <creditmutuelweb.com> 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 domain name compared to the trademark 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 “web”, which is a diminutive of “world wide web” and means “the Internet network”. In fact, the combination of “credit mutuel” with the word “web” 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. On the contrary, this combination suggests that the domain name <creditmutuelweb.com> refers to the banking group associated with the Complainant. Indeed, the consumer that goes to the website at “www.creditmutuelweb.com” will be confused because he will think for example that he may find some online banking services related to the Complainant. Despite the fact that the word “web” is an English word, it is widely used and understood by the French.

Rights or Legitimate Interests

The Respondent should be considered as having no rights or legitimate interests in respect of the domain name <creditmutuelweb.com>.

The Respondent is not related in any way to the Complainant’s business; he is not one of its agents and does not carry out any activity for, or have any business with, it.

The Respondent is not currently and has never been known by the term “Credit Mutuel”, or under the combination of the trademark CREDIT MUTUEL with the word “web”.

No licence or authorization has been granted to the Respondent to make any use, nor apply for registration, of the domain name <creditmutuelweb.com> by the Complainant.

The Complainant claims that the domain name <creditmutuelweb.com> has been registered by the Respondent to take advantage of the Complainant’s trademark renown to confuse and divert Internet users.

As a matter of fact, the Respondent has not engaged in any action that shows he has rights or legitimate interests in the disputed domain name. Moreover, by not responding to the cease and desist letter sent by the Complainant on September 29, 2005, the Respondent asserted 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 at the time he applied for registration of the confusingly similar domain name <creditmutuelweb.com>. First, the term “CREDIT MUTUEL” is only used in French and not in the English language. The equivalent wording in English would be “MUTUAL CREDIT”. It is therefore possible (but not provable) that the Respondent is a French-speaking person or may be related to this country. Moreover, the domain name <creditmutuelweb.com> combines the Complainant’s trademark with the generic word “web”, which describes a part of Credit Mutuel’s activities.

The postal address of the Respondent is the same as that of Josh Self, who was the registrant of the domain name <creditmutuelonline.com>, transferred to the Complainant according to Confederation Nationale du Credit Mutuel v. Josh Self, WIPO Case No. D2005-1057 dated November 25, 2005. It is therefore possible (but not provable) that the Respondent and Josh Self are the same person, or at least closely related persons. Thus, it is hard to imagine any good purpose or legitimate interests the Respondent may have had in registering and using the domain name <creditmutuelweb.com>.

In registering the domain name at stake, there is no doubt that the Respondent wanted to refer to the Complainant. See for example:

The Respondent has registered this domain name solely for the purpose of taking advantage of Internet traffic from Internet users seeking CREDIT MUTUEL products and services on the Internet.

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

The Complainant further contends that the Respondent’s use of the domain name <creditmutuelweb.com> constitutes bad faith use.

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 an MSN Premium services webpage in French.

This activation generates traffic to the benefit of MSN and might generate revenue to the benefit of the Respondent. This use constitutes bad faith use.

Any argument from the Respondent that the activity the domain name is used for is not controlled by him, but by a parking program or some other affiliation program, is not admissible.

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

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel has found that the Complainant has generated substantial common law rights in the mark 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 “web”. The addition of the word “web” does not dispel the connection between the domain name and the trademark. Rather, it simply strengthens the association by having people think that certain services that are usually provided with the CREDIT MUTUEL trademark are provided through the website. The disputed domain name is therefore confusingly similar to the Complainant’s trademark. It is well-established that domain name 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.

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

As to paragraph 4(c)(i) of the Policy, the website “www.creditmutuelweb.com” has led the Panel only to an “MSN Personal Address” parking page. No other use of the disputed domain name has been brought to the Panel’s attention. 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. Under the circumstances, the Panel has found that the Respondent is not in any way engaged with, or preparing for, a bona fide offering of goods or services using the disputed domain name.

As will be discussed below, the Panel has found that the Respondent used the disputed domain name to profit by creating a likelihood of confusion with the Complainant’s trademark. This finding leads the Panel to conclude that paragraphs 4(c)(ii) or (iii) of the Policy do not apply to the disputed domain name.

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 suggests some connection with the field of banking and insurance services. The word “mutuel” itself and the fact that the adjective follows the noun suggest some connection with France. Nevertheless, the Respondent has failed to submit any Response to establish his connection with either the fields of banking and insurance or France.

On the other hand, the Complainant is well known in the fields of banking and insurance services in France, and the disputed domain name consists of the Complainant’s trademark plus the word “web”, 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. 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.

Therefore, 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 <creditmutuelweb.com> be transferred to the Complainant.

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Keiji Kondo
Sole Panelist

Dated: May 5, 2006