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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Confйdйration Nationale du Crйdit Mutuel v. Crйdit Mutuele Bank Sйnйgal

Case No. D2007-1331

1. The Parties

The Complainant is Confйdйration Nationale du Crйdit Mutuel of Paris, France.

The Respondent is Crйdit Mutuele Bank Sйnйgal, of Dakar, Senegal.

2. The Domain Name and Registrar

The disputed domain name <creditmutuelebank.com> is registered with Active 24 ASA.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 6, 2007. On September 10, 2007, the Center transmitted by email to Active 24 ASA a request for registrar verification in connection with the domain name at issue. On September 11, 2007, Active 24 ASA transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 20, 2007. In accordance with paragraph 5(a) of the Rules, the due date for Response was October 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 17, 2007.

The Center appointed Brigitte Joppich as the sole panelist in this matter on October 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 paragraph 7 of the Rules.

4. Factual Background

The Complainant is the central body of the Crйdit Mutuel Banking Group, the largest French banking and insurance service group, consisting of a network of 3,100 offices in France and providing services to approximately 14 million clients. The Complainant operates its services online at “www.creditmutuel.com”.

The Complainant owns numerous CREDIT MUTUEL trademarks throughout the world, including:

- French trademark No. 1475940 “CREDIT MUTUEL” and design registered on July 8, 1988 in classes 35 and 36;

- French trademark No. 1646012 “CREDIT MUTUEL” and design registered on November 20, 1990 in classes 16, 35, 36, 38 and 41; and

- International Registration No. 570182 “CREDIT MUTUEL” and design registered on May 17, 1991 in classes 16, 35, 36, 38 and 41

(the “CREDIT MUTUEL Marks”).

The disputed domain name was registered on February 8, 2006. The domain name was used in connection with spamming activities and to make up an email address to facilitate fraud. The Respondent is using whois-data similar to the business name and the contact details of “Crйdit Mutuel du Sйnйgal”, a company rendering financial services which the Complainant helped to create in 1988. Crйdit Mutuel du Sйnйgal sent a written statement to the Complainant confirming that it did not register the disputed domain name.

5. Parties’ Contentions

A. Complainant

The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are given in the present case:

(1) The domain name <creditmutuelebank.com> is confusingly similar to the well-known CREDIT MUTUEL Marks as it consists of a combination of the trademark CREDIT MUTUEL and the generic term “bank” which does not modify the distinctiveness of the trademark CREDIT MUTUEL but merely describes the Complainant’s main business activity. The Complainant further contends that the letter “e” put in front of the term “bank” may be considered as the initial for “electronic” (“ebank” being commonly used to designate banking services available online).

(2) The Respondent has no legitimate right to use the name CREDIT MUTUEL as the Respondent is not related to the Complainant’s business in any way and is not known under the denomination CREDIT MUTUEL. The Complainant has not licensed or otherwise authorized the Respondent to use its trademarks or to apply for any domain name incorporating such trademarks. Furthermore, the Complainant contends that the domain name is used in connection with spamming activities and a so-called “419 scam” (fraudulent activities) and that such use is not to be considered as bona fide. The Respondent has therefore no rights or legitimate interests with regard to the domain name.

(3) The Complainant finally contends that the domain name was registered and is being used in bad faith.

With regard to bad faith registration, the Complainant contends that the Respondent knew the well-known CREDIT MUTUEL Marks at the time it registered the domain name as the domain name is a combination of the Complainant’s business name and trademark and the word “ebank” which refers to online services provided by the Complainant.

With regard to bad faith use, the Complainant contends that the Respondent has used the domain name in connection with spamming activities and is now using the domain name to divert internet users to a parking webpage provided by its registrar. Furthermore, the fact that the Respondent’s registration details “CREDIT MUTUELE BANK SENEGAL” are very similar to the business name and the contact details of Crйdit Mutuel du Sйnйgal, a financial company the Complainant helped to create in 1988, makes it clear that the domain name was registered and is being used to divert internet users.

B. Respondent

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

6. Discussion and Findings

Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:

(i) the domain name is identical or confusingly similar to the Complainant’s trademark; 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

The disputed domain name fully incorporates the Complainant’s highly distinctive CREDIT MUTUEL Marks in which the Complainant has exclusive rights.

The mere addition of the generic word “ebank” following the trademark does not eliminate the similarity between the Complainant’s marks and the domain name, as “ebank” is a common term which is generally used to describe online banking services. It is well established that a domain name that wholly incorporates a trademark may be confusingly similar to such trademark for purposes of the Policy despite the addition of common or generic words (cf. Dr. Grandel GmbH v. Drg Randel Inc., WIPO Case No. D2005-0829; Microsoft Corporation v. J. Holiday Co., WIPO Case No. D2000-1493; Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253; RRI Financial, Inc., v. Ray Chen, WIPO Case No. D2001-1242).

Furthermore, it is also well established that the specific top level domain name is not an element of distinctiveness that can be taken into consideration when evaluating the identity and similarity of the complainant’s trademark and the disputed domain name (cf. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374; Teradyne, Inc v. 4Tel Technology, WIPO Case No. D2000-0026).

Therefore, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

(i) before any notice to the respondent of the dispute, the use by the respondent 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) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

The Respondent did not file a response in this proceeding. Therefore, the Complainant’s assertions that the Respondent lacks rights or legitimate interests stand unrebutted. Based on the evidence before the Panel, the Respondent apparently did not make any bona fide offering of goods or services in connection with the domain name and is neither commonly known by the domain name nor contends to make a legitimate non-commercial or fair use of the domain name. Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests under paragraphs 4(a)(ii) and 4(c) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.

(i) circumstances indicating that the respondent has registered or 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) 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) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its website or location.

The circumstances mentioned in paragraph 4(b) of the Policy are not exclusive, while the two elements of the third requirement of the Policy are cumulative conditions: the Complainant must show that the domain name was registered in bad faith and is being used in bad faith.

It is inconceivable that the Respondent registered the disputed domain name without knowing of the Complainant’s CREDIT MUTUEL Marks for the following reasons: The Complainant’s business name and mark CREDIT MUTUEL is highly distinctive, the Complainant has been well known under this name for decades, the domain name consists of a combination of the Complainant’s trademarks and the generic word “ebank” (a description of the Complainant’s services), and the Respondent has chosen whois-data very similar to the business name and the contact details of Crйdit Mutuel du Sйnйgal, an entity related to the Complainant.

The Panel is therefore satisfied that the Respondent registered the disputed domain name with full knowledge of the Complainant’s marks and therefore in bad faith under paragraph 4(a)(iii) of the Policy.

It is well established that spamming activities constitute bad faith use under the Policy (cf. Ahead Software AG. v. Leduc Jean, WIPO Case No. D2004-0323; Capstone Mortgage Co. v. Joshua Shook or J. Shook, Inc., WIPO Case No. D2004-0395; Banco Itaъ S.A. v. Verlene L. Miller, WIPO Case No. D2005-0748).

The Complainant has provided evidence that the disputed domain name was at some time used in connection with spamming activities, namely a so called “419” scam (Nigerian money transfer fraud). Such emails usually refer to business opportunities, alleged lottery winnings or an inheritance, asking the addressee for advance payments in order to execute proposed deals. In the Panel’s view, such use of the disputed domain name constitutes bad faith as it includes criminal activities and may divert internet users, damage the Complainant’s reputation and disrupt its business. Moreover, spammers generally intend to gain financial profits from their unsolicited bulk email advertising their websites or services. As a result, the Panel finds that the use of the disputed domain name occurred in bad faith under paragraph 4(b)(iv) of the Policy.

Therefore the Respondent has also been using the disputed domain name in bad faith and the Complainant has thus satisfied the requirements of paragraph 4(a)(iii) of the Policy as well.

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 <creditmutuelebank.com> be transferred to the Complainant.


Brigitte Joppich
Sole Panelist

Dated: November 1, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1331.html

 

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