Administrative panel decision credit Agricole S. A. V. Shao Hu




Yüklə 52.14 Kb.
tarix09.03.2016
ölçüsü52.14 Kb.


group 2


ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Credit Agricole S.A. v. Shao Hu

Case No. D2015-1187



1. The Parties

Complainant is Credit Agricole S.A. of Paris, France, represented by Nameshield, France.


Respondent is Shao Hu of Changsha, Hunan, China.


2. The Domain Name and Registrar

The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 9, 2015. On July 9, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 10, 2015, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.


On July 13, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On July 14, 2015, Respondent requested that Chinese be the language of the proceeding. On July 15, 2015, Complainant requested that English be the language of the proceeding. On the same day, Respondent again objected to that English be the language of the proceeding.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on July 22, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 11, 2015. On July 28, 2015, Respondent sent an email to the Center copying Complainant proposing to transfer the disputed domain name to Complainant for USD 200. On July 29, 2015, Complainant replied and indicated that it did not wish to engage in settlement discussions with Respondent and asked the Center to continue the proceeding. Respondent additionally communicated with the Center and Complainant on July 24 and 29, 2015, however these communications did not substantively address the issues raised in the Complaint. Respondent did not submit any formal response by the specific due date. Accordingly, the Center notified Respondent’s default on August 12, 2015.
The Center appointed Yijun Tian as the sole panelist in this matter on August 26, 2015. 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 due date for Decision was subsequently extended to October 19, 2015.

4. Factual Background
Complainant, Credit Agricole S.A., is a company incorporated in Paris, France. It is a leader in retail banking in France and one of the largest banks in Europe. It assists its clients’ projects all around the world, in all areas of banking and trades associated with it: insurance management, asset leasing and factoring, consumer credit, corporate and investment. (Annex 3 to the Compliant).
Complainant has exclusive rights in numerous trademarks comprising the keyword “Credit Agricole” (hereafter “CREDIT AGRICOLE Marks”). Complainant is the owner of well-known registered CREDIT AGRICOLE Marks globally (since October 10, 1978), such as International Registration of CA CREDIT AGRICOLE mark covering China (since July 12, 1988) and International Registration of CREDIT AGRICOLE mark (since January 4, 2011) (Annex 4 to the Compliant). It also owns many domain names including the trademark CREDIT AGRICOLE, such as the domain name since June 11, 2011.
Respondent is Shao Hu of Changsha, Hunan, China. The disputed domain name was registered by Respondent on June 12, 2015, long after the CREDIT AGRICOLE Marks were registered.
The disputed domain name currently resolves to a pay-per-click (“PPC”) parking page, with links to Complainant’s as well as competitors’ websites.

5. Parties’ Contentions
A. Complainant
Complainant contends that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
The disputed domain is identical to the CREDIT AGRICOLE Mark because the disputed domain incorporates in its entirety this expression, without any adjunction of letter or word.
Complainant contends that Respondent has no legitimate interests or rights in the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be transferred to it.

B. Respondent

Respondent did not reply to Complainant’s contentions formally.


By contrast, he sent an email, which proposed to transfer the disputed domain name for USD 200.

6. Discussion and Findings




6.1. Language of the Proceeding

The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:


(a) The English is the language most widely used in international relations and is one of the working languages of the Center.
(b) The disputed domain name is composed of the trademark CREDIT AGRICOLE in ASCII characters and the new generic Top-Level Domain (“gTLD”) “.top”; the disputed domain name is registered in Roman alphabet and not in Chinese.
(c) Complainant contends that Respondent is familiar with English language.
(d) The Complaint is written in English but the Center informed Respondent in Chinese and English, and afforded Respondent the opportunity to do all of the above in Chinese.
Respondent replied two emails with respect to the language of the proceeding and objected to the use of English as the language of the proceeding. It has requested that Chinese be the language of the proceeding for the following reasons:
(a) The working language of “.top” domain name Registrar is Chinese.
(b) The disputed domain name was registered in China.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances of the case. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical applicance co. ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) further states:
“in certain situations, where the respondent can apparently understand the language of the complaint (or having been given a fair chance to object has not done so), and Complainant would be unfairly disadvantaged by being forced to translate, the WIPO Center as a provider may accept the language of the complaint, even if it is different from the language of the registration agreement”. (WIPO Overview 2.0, paragraph 4.3; see also L’Oreal S.A. v. Munhyunja, WIPO Case No. D2003-0585).
The Panel has taken into consideration the fact that Complainant is a company from France, and Complainant will be spared the burden of dealing with Chinese as the language of the proceeding. The Panel has also taken into consideration the facts that Respondent’s website is in English and the disputed domain name includes Latin characters “agricole” and English word “credit” (Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).
On the record, Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds that persuasive evidence in the present proceeding to suggest that Respondent may have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name is registered in Latin characters and particularly in English, rather than Chinese script; (b) The content on the website at the disputed domain name is in English, rather than in Chinese; (c) Respondent’s responses to Complainant (email on July 29, 2015) shows that Respondent understands English; and (d) the Center has notified Respondent of the proceeding in both Chinese and English, and that it would accept a Response in either English or Chinese.
Considering these circumstances, the Panel finds that the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English.

6.2. Discussion and Findings

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:


(i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel finds that Complainant has rights in the CREDIT AGRICOLE Marks acquired through registration. The CREDIT AGRICOLE Marks have been registered worldwide including International Registrations coving France, Europe and China, and Complainant has a widespread reputation as a leading bank in Europe.


The disputed domain name comprises the CREDIT AGRICOLE Mark in its entirety. The disputed domain name only differs from Complainant’s trademarks by the gTLD suffix “.top” to the CREDIT AGRICOLE Marks. This does not eliminate the identity or at least the confusing similarity between Complainant’s registered trademarks and the disputed domain name. WIPO Overview 2.0 states:
“The applicable top-level suffix in the domain name (e.g., “.com”) would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark” (paragraph 1.2).
Thus, the Panel finds that the gTLD suffix “.top” is not sufficient to negate the confusing similarity between the disputed domain name and the CREDIT AGRICOLE Marks.
The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.


B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:


(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant’s trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai, WIPO Case No. D2008-0441; WIPO Overview 2.0, paragraph 2.1 and cases cited therein).
Complainant has rights in the CREDIT AGRICOLE Marks globally, including International Registration covering China since 1988, which long precedes Respondent’s registration of the disputed domain name (June 12, 2015).
According to the Complaint, Complainant is a leader in retail banking in France and one of the largest banks in Europe. It assists its clients’ projects all around the world, in all areas of banking and trades associated with it: insurance management, asset leasing and factoring, consumer credit, corporate and investment.
Moreover, Respondent is not an authorized dealer of CREDIT AGRICOLE branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. It seems that Respondent is using the website resolved by the disputed domain name to display links relating to Complainant’s business, and Respondent proposed to transfer the disputed domain name for USD 200 after Respondent received the Complaint notified by the Center. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the word “credit agricole” in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the CREDIT AGRICOLE Marks or to apply for or use any domain name incorporating the CREDIT AGRICOLE Marks.
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name on June 12, 2015, long after the CREDIT AGRICOLE Marks became internationally known. The disputed domain name is identical or confusingly similar to Complainant’s CREDIT AGRICOLE Marks.
(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, according to the information provided by Complainant, in Respondent’s responses to the Complaint, Respondent proposed to transfer the disputed domain name for USD 200.
The Panel finds that Respondent has failed to produce any evidence to establish his rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:


(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith.

a) Registered in Bad Faith

The Panel finds that Complainant has a widespread reputation in the CREDIT AGRICOLE Marks with regard to its products and services. Complainant has registered its CREDIT AGRICOLE Marks internationally, including International Registration covering China (since 1988). Based on the information provided by Complainant, Complainant is a leader in retail banking in France and one of the largest banks in Europe, and assists its clients’ projects all around the world.


It is not conceivable that Respondent would not have had actual notice of Complainant’s trademark rights at the time of the registration of the disputed domain name (in 2015).
Moreover, Respondent has chosen not to formally respond to Complainant’s allegations. By contrast, Respondent proposed to transfer the disputed domain name for USD 200. According to the panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith” (see also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002 0787).

Thus, the Panel concludes that the disputed domain name was registered in bad faith.



b) Used in Bad Faith

Complainant has adduced evidence to prove that by using the confusingly similar disputed domain name in connection with PPC links, Respondent has “intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites”.


Furthermore, after Respondent received the Complaint notified by the Center, Respondent proposed to transfer the disputed domain name for USD 200.
To establish an “intention for commercial gain” for the purpose of this Policy, evidence is required to indicate that it is “more likely than not” that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Given the widespread reputation of the CREDIT AGRICOLE Marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website to which the disputed domain name resolves. In other words, Respondent has through the use of a confusingly similar disputed domain name created a likelihood of confusion with the CREDIT AGRICOLE Marks. Moreover, Respondent did not respond formally to the Complaint. The Panel therefore concludes that the disputed domain name is being used by Respondent in bad faith.
In summary, Respondent, by choosing to register and use the disputed domain name, which is confusingly similar to Complainant’s well-known trademarks, intended to ride on the goodwill of Complainant’s trademarks in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolves and the offer to sell the disputed domain name to Complainant are indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy.


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 disputed domain name be transferred to Complainant.



Yijun Tian

Sole Panelist



Dated: October 16, 2015



Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©azrefs.org 2016
rəhbərliyinə müraciət

    Ana səhifə