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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Confйdйration Nationale du Crйdit Mutuel, Caisse Fйdйrale du Crйdit Mutuel Nord Europe v. Marketing Total S.A.
Case No. D2007-0288
1. The Parties
The Complainants are Confйdйration Nationale du Crйdit Mutuel, Paris, France and Caisse Fйdйrale du Crйdit Mutuel Nord Europe, Lille, France, both represented by Meyer & Partenaires, Strasbourg, France.
The Respondent is Marketing Total S.A., Charlestown, West Indies, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <creditmutueldunord.com> is registered with DomainDoorman, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 27, 2007. On March 1, 2007, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On March 1, 2007, DomainDoorman, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the registrant contact details. 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 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 28, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 2, 2007.
The Center appointed Edoardo Fano as the sole panelist in this matter on April 18, 2007. 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 Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties (taking note of the Respondent’s default in responding to the Complaint).
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent”. Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondent’s response.
The language of the proceeding is English, being the language of the Registration Agreement.
4. Factual Background
The Complainants are Confйdйration Nationale du Crйdit Mutuel, the central and political body of the banking group Crйdit Mutuel (the second largest French detail bank), and Caisse Fйdйrale du Crйdit Mutuel Nord Europe (formerly Crйdit Mutuel du Nord and still frequently referred to using this denomination), the operating body for the northern Federation of Crйdit Mutuel.
Among others, the Complainants are the owners of the following trademark registrations:
- French registration for CRЙDIT MUTUEL No. 1.475.940;
- French registration for CRЙDIT MUTUEL No. 1.646.012;
- International registration for CRЙDIT MUTUEL No. 570.182,
owned by Confйdйration Nationale du Crйdit Mutuel;
- French registration for CRЙDIT MUTUEL NORD EUROPE No. 3.017.692;
- French registration for CRЙDIT MUTUEL NORD CMN No. 97.699.855,
owned by Caisse Fйdйrale du Crйdit Mutuel du Nord Europe.
The Complainants’ trademark rights in the wordings CRЙDIT MUTUEL and CRЙDIT MUTUEL NORD (EUROPE), both associated with their financial and banking services, date back respectively to 1988 and 1997.
The Respondent’s domain name <creditmutueldunord.com> was registered on July 5, 2006. It pointed to a parking webpage with French links mainly to financial and banking services and is currently pointing to a parking webpage with Spanish links to various services which also included financial services.
5. Parties’ Contentions
The Complainants state that the disputed domain name <creditmutueldunord.com> is confusingly similar to their trademarks CRЙDIT MUTUEL, CRЙDIT MUTUEL NORD EUROPE and CREDIT MUTUEL NORD.
Moreover, the Respondent has no rights or legitimate interests in respect of the domain name at issue since it is neither a licensee of the Complainants nor otherwise authorized to use their trademarks CRЙDIT MUTUEL, CRЙDIT MUTUEL NORD EUROPE and CREDIT MUTUEL NORD.
The Respondent is not commonly known by the domain name and is not using the domain name in question in connection with a bona fide offering of goods/services.
The Complainants further contend that the Respondent registered and is using the disputed domain name in bad faith.
It is not likely that the Respondent was unaware the Complainants’ trademark CRЙDIT MUTUEL nor has casually made the association of the latter with the geographic indication DU NORD, the combination of which refers to the Complainant Northern France subsidiary former business name.
The Respondent is using the disputed domain name to divert internet users to parking webpages on which there are links to financial and banking services, including many commercial websites of Complainants’ competitors.
This use of the disputed domain name <creditmutueldunord.com> generates revenues for the Respondent through a “pay per click” domain parking program.
The Respondent did not reply to the Complainants’ contentions and is in default: no exceptional circumstances explaining the default have been put forward.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, facts asserted by the complainant may be taken as true and reasonable inferences by the panel, in accordance with paragraph 14(b) of the Rules (see also Reuters Limited v. Global Net 2000, Inc.,
WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,
WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman,
WIPO Case No. D2000-1080; Alta Vista Company v. Grandtotal Finances Limited et al.,
WIPO Case No. D2000-0848).
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements, which the Complainants must satisfy in order to succeed:
(i) the domain name is identical or confusingly similar to a trade mark or service mark in which the Complainants have rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
As far as the first of these elements is concerned, the Panel finds that the Complainants are the owners of the trademarks CRЙDIT MUTUEL, CRЙDIT MUTUEL NORD EUROPE and CREDIT MUTUEL NORD both by registration and acquired reputation and that the disputed domain name <creditmutueldunord.com> is confusingly similar to these trademarks.
It is also well accepted that a top-level domain, in this case “.com”, is to be ignored when assessing identity of mark and domain name (see, e.g., VAT Holding AG v. vat.com,
WIPO Case No. D2000-0607).
The Complainants have therefore met their burden of proving that the domain name at issue is confusingly similar to the Complainants’ trademarks, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Respondent has failed to file a Response in accordance with the Rules, paragraph 5.
The Complainants have established a prima facie case that the Respondent has no right or legitimate interest in the domain name. The Complainants have stated that the Respondent is not a licensee of the Complainants and has not otherwise been authorized by the Complainants to use their trademark. The Respondent also does not appear to be known by the disputed domain name. Further, the Panel does not find that the domain name is being used for a legitimate noncommercial or fair use or, as discussed below, that the domain name is used in connection with a bona fide offering of goods or services.
The prima facie case presented by the Complainants is enough to shift the burden of proof to the Respondent to demonstrate that it has a right or legitimate interest in the domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in using the disputed domain name.
The Panel therefore finds that the Policy, paragraph 4(a)(ii), has been satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainants who are the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) that the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) that the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, the Respondent had intentionally attempted 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 Complainants’ 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.
The Panel is of the opinion that the disputed domain name was registered and used in bad faith. Specifically, the domain name was registered and has been used by the Respondent in order to attract internet users to its website for commercial gain.
It is apparent that the Respondent is aware of both the Complainants and their activities, since the disputed domain incorporating the Complainants’ trademark is the URL of a website with many links to financial and banking services.
The Complainants have proved that the Respondent is using the disputed domain name to divert internet users to a parking webpage with links to commercial websites of competitors of the Complainants in order to generate revenues on a “pay per click” basis, which cannot be considered as a bona fide offering of goods or services (see, e.g., Crйdit Industriel et Commercial S.A. v. Richard J.,
WIPO Case No. D2005-0569; Sociйtй Air France v. WWW Enterprise, Inc.,
WIPO Case No. D2005-1160).
Considering the above, the Panel finds that the Complainants have presented sufficient evidence to satisfy their burden of proof with respect to the issue of whether the Respondent has registered and used the disputed domain name in bad faith. The Panel therefore finds that the Policy, paragraph 4(a)(iii) has been satisfied.
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 <creditmutueldunord.com> be transferred to the Complainant, namely to Caisse Fйdйrale du Crйdit Mutuel Nord Europe.
Dated: April 30, 2007