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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Confederation Nationale du Credit Mutuel v. Dan Georgius and MBM Ltd.

Case No. D2007-1606

1. The Parties

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

The Respondent is Dan Georgius and MBM Ltd., of Mahe, Republic of Seychelles.

2. The Domain Name and Registrar

The disputed domain name <creditmutuel-fr.info> is registered with Domain Discover.

3. Procedural History

Issuance of the Complaint

The Complaint was submitted electronically to the WIPO Arbitration and Mediation Center (the “Center”) on October 30, 2007. A paper original of the Complaint together with annexes was sent by courier on the same date, and received by the Center on November 1, 2007. On October 31, 2007, the Center transmitted on by email to the Registrar a request for registrar verification in connection with the domain name at issue. On October 31, 2007, the Registrar transmitted by e-mail to the Center its verification response confirming that Dan Georgius, MBM Ltd. is listed as the registrant and providing the contact details. On November 5, 2007, the Center notified to the Complainant a Complaint deficiency. On the same date, the Complainant sent an amended Complaint to the Center.

Notification to Respondent

On November 9, 2007, the Center formally issued to the Respondent a Notification of Complaint and Commencement of Administrative Proceeding (including a copy of the filed Complaints) to both the postal and email addresses of the Respondent, as provided by the Registrar. The proceedings commenced on the same day. In accordance with the Rules, paragraph 5(a), the due date for Response was November 29, 2007. The Respondent did not submit any response. Thus, the Center notified the Respondent’s default on December 4, 2007.

Appointment of the Panel

The Center appointed Kamen Troller as the sole panelist in this matter on December 12, 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.

4. Factual Background

A. The Complainant

The Complainant is a French association and one of the largest banking groups in France, offering all kinds of financial services and products, including online banking services under, amongst others listed below, the domain name <creditmutuel.com>. The Complainant provides services to more than 10 million clients and consists of a network of 3,100 offices in France, managed through 18 regional groups. In addition, the Complainant has 40 offices outside of France.

The Complainant provided evidence of a number of trademark registrations consisting of the term “credit mutuel”, for instance:

- CREDIT MUTUEL, a French figurative trademark in respect of classes 35 and 36 of the Nice Agreement, registered on July 8, 1988 and renewed on May 15, 1998 (registration No. 1475940);

- CREDIT MUTUEL, a French figurative trademark in respect of classes 16, 35, 36, 38 and 41 of the Nice Agreement, registered on November 20, 1990 and renewed on November 20, 2000 (registration No. 1646012);

- CREDIT MUTUEL, an International semi-figurative trademark in respect of classes 16, 35, 36, 38 and 41, registered on May 17, 1991 (registration No. 570182).

The Complainant is the registrant, under Euro-Information, which is the name of the computing subsidiary of the Crйdit Mutuel Group, of the following domain names:

- <creditmutuel.fr>, created on August 10, 1995;

- <creditmutuel.com>, created on October 28, 1995;

- <creditmutuel.eu>, created on March 13, 2006;

- <creditmutuel.mobi>, created on September 26, 2006.

B. The Respondent

The Respondent registered the domain name <creditmutuel-fr.info> on May 30, 2007.

The Registrar provides the following information: the Registrant of the disputed domain name is Dan Georgius, MBM Ltd., domiciled in Mahe, Republic of Seychelles.

The billing contact is an individual domiciled in Sofia, Bulgaria. The phone number and the email address are the same as the ones for the Registrant.

According to the information provided by the website “www.seychelles.net/mbm/”, there is one company in the Republic of Seychelles named MBM Ltd; however, its address is not the one provided by the Respondent to the Registrar, its phone number also differs from the one given by the Respondent and its email address is, likewise, not the same as the one mentioned by the Respondent .

The Panel notes that Dan Georgius, MBM Ltd, registered, in June 2007, several domain names, amongst others: <noleggio-auto-ita.info>, <german-musikvideo.info>, <fr-musique.info>, <pc-france.info>, <1-minijob.de.info>.

After a quick informal check on Google, it appeared that the names “Dan Georgius” and the billing contact for the domain name are mentioned in several suspicious spamming cases.

The Respondent did not submit any statement of defense. To the best knowledge of the Panel, the Respondent did not register “creditmutuel-fr” as a trademark in any jurisdiction, nor is he well-known under this name.

C. The Cease and desist letter

According to the Complainant’s contentions, the Complainant has sent a cease and desist letter to the Respondent, both by email and by postal mail. Whereas the email remained unanswered, the letter was returned due to insufficient address.

Nevertheless, the only cease and desist letter enclosed to the Complaint concerns another domain name (<creditmutuellefrance.com>), is dated August 26, 2006 and is addressed to another individual.

5. Parties’ Contentions

A. Complainant

The Complainant alleges that each of the three elements specified in paragraph 4(a) of the Policy are applicable to the disputed domain name. More precisely, it asserts that:

(i) the domain name <creditmutuel-fr.info> is similar to the Complainant’s trademark CREDIT MUTUEL, because the trademark is entirely reproduced in the disputed domain name; the Complainant further alleges that the only distinctive part of the disputed domain name is the abbreviation “fr” linked by an hyphen, which refers to France, being the country where the Complainant is established and doing its main business. The Complainant also contends that the adjunction of the term “fr” suggests that the disputed domain name refers to the French banking group.

(ii) the Respondent has no right or legitimate interest in the domain name: the Complainant contends that the Respondent is not related in any way to the Complainant’s business, has not acquired any right on neither Credit Mutuel nor Credit Mutuel-fr and is not currently and has never been known under the wording Credit Mutuel or under the combination of Credit Mutuel with the abbreviation “fr”.

(iii) the domain has been registered and is used in bad faith: the Complainant asserts that it is difficult to imagine that the Respondent could have ignored the trademark CREDIT MUTUEL at the time it applied for the disputed domain name. The Complainant further stresses that the Respondent provided insufficient post address in the WHOIS database, in order to prevent the Complainant from notifying its formal notice. The Complainant finally submits that, according to its own investigations, the Respondent appears to be engaged in massive spam attacks, using domain names in “.info”. Therefore, it would be likely that the disputed domain name was registered for similar purposes to attack the Complainant.

Concerning the bad faith use, the Complainant contends that the Respondent is using the disputed domain name in order to divert Internet users to a parking page providing sponsored links to some of the Complainant’s competitors, attempting by this way to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location.

The Complainant requests the Administrative Panel to issue a decision that the disputed domain name be transferred to the Complainant.

B. Respondent

There was no response filed by the Respondent.

6. Discussion and Findings

A. Procedural matters

Default of the Respondent

In such cases where the Respondent does not submit a response, para.. 5(e) of the Rules states that in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.

No such exceptional circumstances are apparent to the Panel on the available record in the present case. The rule mentioned above shall thus be applied.

B. Substantive matters

Pursuant to para. 4(a) of the Policy, the Complainant must prove that each of the three elements are present:

(i) the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has 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

First, it is undisputed that the Complainant has rights on the CREDIT MUTUEL trademark.

Second, prior panels have held that when a domain name incorporates a distinctive mark in its entirety, this creates sufficient similarity between a mark and a domain name to render the domain name confusingly similar (EAuto v. Triple S. Auto Parts, WIPO Case No. D2000-0047).

In the case at hand, the disputed domain name contains entirely the CREDIT MUTUEL trademark.

Third, it is the Panel’s opinion, in line with Quilvest SA & Quilvest SA Banque Privйe v. Peter Cross, WIPO Case No. D2007-0587; Vedior N.V Vedior International Contracts B.V and Select Appointment (Holdings) Limited v. Rajesh Kumar, WIPO Case No. D2006-1507 and Sociйtй Air France v. Air France E-ticket, WIPO Case No. D2005-1148, that neither the hyphen nor a geographical indicator can abolish the likelihood of confusion between a trademark and a domain name.

In the present case the Panel finds that the domain name <creditmutuel-fr.info> and the CREDIT MUTUEL trademark are confusingly similar, based upon the following factors:

- <creditmutuel-fr.info> contains the CREDIT MUTUEL trademark entirely;

- The only difference between the disputed domain name and the Complainant’s trademark is the addition of the abbreviation “fr” at the end, with a hyphen;

- The domain name <creditmutuel-fr.info> has no other meaning that the one of the wording CREDIT MUTUEL, with the addition of the abbreviation “fr” at the end;

- CREDIT MUTUEL is a widely known and distinctive trademark that is entitled to strong level of protection.

Considering these circumstances, the Panel concludes that the domain name is confusingly similar to a trademark in which the Complainant has rights.

(b) Rights or legitimate interests

Paragraph 4(c) of the Policy defines the circumstances allowing a respondent to demonstrate “rights to and a legitimate interest in the domain name”, the respondent only being required to demonstrate one of the following circumstances (in particular and without limitation) to prove its rights to or legitimate interest in the domain name:

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

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

In the case at hand, the Panel notes that, to its best knowledge, the Respondent did neither register “creditmutuel-fr” as a trademark in any jurisdiction, nor is he commonly known by this name. Further, the Panel relies on the uncontradicted statement made by the Complainant that it has not authorized the Respondent’s use of the CREDIT MUTUEL trademark.

This prima facie satisfaction of these elements leads to the conclusion that the Respondent lacks rights or legitimate interest in the disputed domain name.

It has been long-established that once a Complainant has established a prima facie case that a Respondent lacks rights or legitimate interests in a disputed domain name, the burden of establishing such right or legitimate interest passes to the Respondent.

By not submitting a response to the present Complaint, the Panel finds that the Respondent has made it impossible for the Panel to acknowledge the existence of any of the circumstances.

Based on the above-mentioned considerations, the Panel thus concludes that the Respondent has no rights or legitimate interests in the domain name.

(c) Bad faith

Para. 4(a)(iii) of the Policy requires the Complainant to prove registration in bad faith, as well as use in bad faith.

Para. 4(b) of the Policy sets forth a non-exclusive list of circumstances each of which shall be evidence that the registration and use of a domain name is in bad faith:

(i) circumstances indicating that you have registered or you 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 trademark 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 have 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 you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.

Registration in bad faith

In a similar case, it has been held that the CREDIT MUTUEL trademark is widely known and that, therefore, it was very unlikely that an English respondent was not aware of the said trademark (Confйdйration Nationale du Crйdit Mutuel v. Marley Bryan, WIPO Case No. D2007-0072); it has also been held, in a case where a respondent was domiciled in Senegal, that the CREDIT MUTUEL mark is highly distinctive and has been known for decades (Confйdйration Nationale du Crйdit Mutuel v. Credit Mutuele Bank Sйnйgal, WIPO Case No. D2007-1331).

In the present case, the Panel finds that the disputed domain name was registered in bad faith for the following reasons:

- The Complainant’s CREDIT MUTUEL mark is highly distinctive;

- CREDIT MUTUEL is one of the largest banking groups in France;

- The abbreviation “fr” added at the end of the disputed domain name undoubtedly refers to France; indeed, unlike other domain names which are held by the Respondent (e.g. <noleggio-auto-ita.info>), the disputed domain name contains information in French; since firstly the Confйdйration Nationale du Crйdit Mutuel is based in France and secondly the CREDIT MUTUEL trademark has only meaning in French, the Panel concludes that the Respondent was aware of the existence of the CREDIT MUTUEL trademark;

- The disputed domain name was registered 19 years after the Complainant acquired registered rights in the trademark CREDIT MUTUEL, and 12 years after the creation of the domain name <creditmutuel.com>.

Use in bad faith

The disputed domain name points to a parking page providing more than 100 “articles” on different topics, such as “Simulation rachat credit”, “Magasin Pret Porter”, “Credit consommation Sarkozy”, “Credit Lyonnais Cameroun” and “Pret in fine”. These articles are written in bad French, at times even incomprehensible (e.g. article “Pret in fine”: “Quel est le montant maximal de 115 ˆ par personne si cela permet d’assurer une rotation plus rapide. En pratique, ce n’est pas oblige de prendre le temps passe et plus generalement des europeens”; article “Wipe out credit card debt: “Cette offre doit etre lie a leur emboiter le pas avec une mensualitй de remboursement de crйdit est envisagй. Dans le choix du type de mesure constitue evidemment un signal favorable.”).

First, the Panels finds, in line with numerous panels decisions, that using a domain name confusingly similar to a complainant’s mark to link to a website of the complainant’s competitor constitutes “bad faith” under the Policy (National City Corporation v. MH Neworks LLC, WIPO Case No. D2004-0128; Edmunds.com v. Ultimate Search, Inc., WIPO Case No. D2001-1319; Netwizards, Inc. v. Spectrum Enterprises, WIPO Case No. D2000-1768).

Prior panels have also recognized that the registration of domain names which are then used to operate “click-through” sites can be considered to be evidence of bad faith registration and use (see, e.g. St. Baldrick’s Foundation Inc. v. Wan-Fu China, Ltd, WIPO Case No. D2007-0705).

This conduct can indeed provide business opportunities for the Complainant’s competitors, as well as revenues for the Respondent (La Mutuelle Assurance des Instituteurs de France – MAIF v. Click Cons. Ltd, WIPO Case No. D2007-1178).

Contrary to the Complainant’s assertions, the Panel notes that the disputed domain name does not link to websites of the Complainant’s competitors, but solely to articles, some containing the names of some of the Complainant’s competitors or to some competing activities.

In any case, the Panel cannot imagine any present or future use of the disputed domain name which would not aim at obtaining some commercial gain for the Respondent; this opinion is supported by at least one of the articles, named “Simulation credit Location voiture option achat”, which states: “Quatre ou cinq pages d’ecran suivront pour renseigner tout ce que nous avons quatre options d’emprunt a taux fixe” (roughly translated to: Four or five screen pages will follow, in order to give information about our four options of fixed-rate loans).

The Panel thus considers that the Respondent’ apparentintent is to use the disputed domain name for commercial purposes, notably in the financial field, which is the same business field as the one of the Complainant.

Therefore, the Panel finds that the Respondent’s intent is to use the disputed domain name for attracting, for commercial gain, Internet users to its own website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of its own website.

This constitutes a bad faith use under the Policy.

Moreover, the Panel stresses that prior panels have held that the apparent concealment of true identity by a registrant may be evidence that the respondent, who may or may not be a different person, is using a domain name in bad faith (Confйdйration Nationale du Crйdit Mutuel v. Marley Bryan, WIPO Case No. D2007-0072).

In the case at hand, the Panel finds the Respondent is concealing its true identity for the following reasons:

- According to the non contradicted assertions of the Complainant, a cease and desist letter was sent by the Complainant to the Respondent and was returned due to insufficient address. The Panel finds that such a letter was really sent by the Complainant; the fact that the cease and desist letter enclosed by the latter to the Complaint is not the one sent to the Respondent, is probably a mistake made by the Complainant. This does not alone prevent the Panel to rely on the Complainant’s contentions regarding this subject;

- The postal code given by the Respondent to the Registrar (1000) is not attributed to the Republic of Seychelles;

- The given phone number is not related to the Republic of Seychelles, since the area code +359 is the one of Bulgaria;

- The information provided by the Respondent for the billing contact, domiciled at the same address as the Respondent; this is exactly the same address as the one the Respondent gave for himself in the Republic of Seychelles, but in Sofia, Bulgaria, which seems highly suspicious;

- According to the website “www.seychelles.net/mbm/”, there is one company in the Republic of Seychelles named MBM Ltd; however, its address is not the one provided by the Respondent to the Registrar, its phone number also differs from the one given by the Respondent and its email address is neither the same as the one mentioned by the Respondent.

At last, it appears on the Internet that the names “Dan Georgius” and the billing contact are mentioned in several suspicious spamming cases.

The aforesaid is sufficient for the Panel to consider that the use of the disputed domain name by the Respondent is of bad faith, pursuant to para. 4(b)(iv) of the Policy.

7. Decision

The Panel decides that the domain name <creditmutuel-fr.info> is confusingly similar to the trademark “CREDIT MUTUEL”; that the Respondent has no rights or legitimate interests in respect of the domain name; and, that the Respondent has registered and used the domain name in bad faith.

Pursuant to para. 4(a) of the Policy and 15 of the Rules, the Panel decides that the domain name <creditmutuel-fr.info> be transferred to the Complainant.


Kamen Troller
Sole Panelist

Dated: December 21, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1606.html

 

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