Confederation Nationale du Credit Mutuel V. Fernand Macia / Registration Private / Domains By Proxy, llc / DomainsByProxy com




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Confederation Nationale du Credit Mutuel v. Fernand Macia / Registration Private / Domains By Proxy, LLC / DomainsByProxy.com

Case No. D2015-1699



1. The Parties

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


The Respondent is Fernand Macia, Vannes, France / Registration Private / Domains By Proxy, LLC / DomainsByProxy.com, Scottsdale, Arizona, United States of America.


2. The Domain Name and Registrar

The disputed domain name is registered with GoDaddy.com, LLC (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2015. On September 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 25, 2015 the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 30, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 5, 2015.


The Center verified that the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 9, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2, 2015.
The Center appointed Christiane Féral-Schuhl as the sole panelist in this matter on November 19, 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.


4. Factual Background

The Complainant is the political and central body of the Crédit Mutuel Banking Group, which is the second French banking and insurances services group, consisting of a network of more than 3,000 offices in France and providing services to approximately 12 million clients. The Complainant is operating under a web portal at “www.creditmutuel.com” and “www.creditmutuel.fr”.


Specifically, “www.creditmutuel.fr” offers online banking services to its clients who can manage their account online through this website.
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 and duly renewed;
- French trademark No. 1646012 CREDIT MUTUEL and design registered on November 20, 1990 in classes 16, 35, 36, 38 and 41 and duly renewed;
- International Registration No. 570182 CREDIT MUTUEL and design registered on May 17, 1991 in classes 16, 35, 36, 38 and 41 and duly renewed;

(the “CREDIT MUTUEL Marks”).


The Complainant also holds numerous domain names, such as , , , and .
The disputed domain name was registered on October 27, 2014. The visible use of the disputed domain name is error page which displays the message “404. That’s an error.

The requested URL / was not found on this server”.




5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is confusingly similar to the trademark CREDIT MUTUEL in which the Complainant has rights. The Complainant states that its trademark CREDIT MUTUEL falls into the category of a well-known trademark and that the disputed domain name reproduces integrally its trademark CREDIT MUTUEL.


Furthermore, the Complainant highlights that the use of punctuation marks, such hyphens does not alter the fact that a domain name is identical to a mark.
The Complainant adds that the addition of the prefix “ebank” is commonly used and would be commonly perceived as a shortening of “online” banking services.
The Complainant considers that the trademark CREDIT MUTUEL remains the distinctive and main part of the disputed domain name, despite the addition of the generic term “ebank” which does not alter the risk of confusion with this trademark.
According to the Complainant, the generic Top-Level Domain (“gTLD”) extension “.com” is not to be taken into account as a technical and necessary part of the domain name.
The Complainant adds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant asserts that the Respondent is not related in any way to the Complainant’s business. The Complainant adds that the Respondent is not one of its agents and that the Respondent is not authorized or licensed to use the CREDIT MUTUEL trademark or to apply for registration of the disputed domain name .
The Complainant adds that the Respondent is not related to the Complainant’s business and is not known under the wording “credit mutuel”.
Moreover, the Complainant highlights that the Respondent is not registered with the French register of bank and insurance intermediaries ORIAS, which registration is mandatory.
Finally, according to the Complainant, the Respondent has not committed any action showing that he has rights or legitimate interests in the disputed domain name.
Lastly, the Complainant contends that the Respondent registered and uses the disputed domain name in bad faith.
The Complainant stated that given the strong reputation and the widely known nature of the CREDIT MUTUEL trademark, at least in France, it is difficult to imagine that the Respondent was not aware of the Complainant’s reputation and rights to this trademark when registering the disputed domain name.
The Complainant considers that the choice of the Respondent to combine the trademark CREDIT MUTUEL and the generic term “ebank” was not coincidental, but made to create a real and concrete correlation between the disputed domain name and the Complainant for the Complainant’s clients and other Internet users. Indeed, the generic term “ebank” describes one of the main activities of the Complainant.
In addition, the Complainant highlights the fact that the Respondent uses a WhoIs proxy service to keep his personal identity private and, that this might confirm a fraudulent intention in the registration of the disputed domain name.
Moreover, the Complainant alleges that the Respondent makes a passive holding of the disputed domain name. According to the Complainant, the disputed domain name redirects to an error page displaying the message “url not found”, and the fact that the disputed domain name is passively held does not prevent a finding of bad faith.
The Complainant points out that the Respondent has activated the disputed domain name’s email servers, which allows sending and receiving emails with any email address ending by “@ebank-creditmutuel.com”. The Complainant claims that the Respondent could use it for commercial emailing, spamming, or phishing purpose, to the detriment of Complainant and will force the Complainant’s IT services to survey any potential online use or report involving a “@ebank-creditmutuel.com” email address.
Finally, the Complainant points out the fact that, as a banking group, the Complainant has continually to face counterfeiting and phishing attempts and it has to prevent a new fake of its website and protect its client from counterfeiting and fraud.
The Complainant therefore requests the Panel to order that the disputed domain name be transferred to the Complainant.

B. Respondent

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




6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of the disputed domain name, the Complainant shall prove the following three elements:


(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the 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.

A. Identical or Confusingly Similar

The Panel observes that the Complainant has provided evidence that it has rights in the CREDIT MUTUEL marks, and numerous domain names incorporating “credit mutuel”.


In this case, the disputed domain name is composed of the distinctive element “creditmutuel”, which is the exact reproduction of the protected CREDIT MUTUEL mark, to which is added the generic terms “ebank-” and the gTLD suffix “.com”.
First of all, when determining whether a domain name and a trademark are identical or confusingly similar, the gTLD may typically be disregarded.
Furthermore, the Panel concurs with the opinion of several prior UDRP panel decisions which have held that, when a domain name wholly incorporates a complainant’s registered trademark, that may be sufficient to establish confusing similarity for purposes of the Policy (see, e.g., Hoffmann-La Roche Inc., Roche Products Limited v.Vladimir Ulyanov, WIPO Case No. D2011-1474; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002 0615; Swarovski Aktiengesellschaft v. mei xudong, WIPO Case No. D2013-0150; RapidShare AG, Christian Schmid v. InvisibleRegistration.com, Domain Admin, WIPO Case No. D2010 1059).
As a consequence, regarding the disputed domain name , the Panel finds that the addition of the prefix “ebank-” to the trademark CREDIT MUTUEL is not sufficient to exclude confusing similarity.
Moreover, with regards to the banking activity of the Complainant, the addition of the generic terms “ebank”, which is an expression commonly used to designate online banking services of a company, would rather enhance the risk of confusion with the Complainant’s trademark (see France Telecom v. Richard J., WIPO Case No. D2006-0807).
In view of the above, the Panel considers that the Complainant has proved that the disputed domain name is confusingly similar to the trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Policy outlines circumstances (Policy, paragraph 4(c)), that if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interests to the disputed domain name. These circumstances are:

(i) before any notice to the Respondent of the dispute, the Respondent’s use 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) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, even if he has acquired no trademark or service mark rights; or
(iii) the 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 the trademark or service mark at issue.
According to prior UDRP panel decisions, it is sufficient that the Complainant shows a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name in order to shift the burden of production to the Respondent (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Panel finds that the Complainant has made a prima facie showing that the Respondent has no authorization or license from the Complainant to use the Complainant’s trademarks, that there is no business relationship existing between the Complainant and the Respondent and that the Respondent is not itself commonly known under the disputed domain name.
The Respondent did not reply to the Complainant’s contentions and thus has provided no evidence of the circumstances specified in paragraph 4(c) of the Policy, nor any circumstances giving rise to a right or legitimate interest in the disputed domain name. The Panel also considers that, as the disputed domain name apparently resolves to an error page, there is no bona fide offering of goods and services by the Respondent.
In view of the above, the Panel considers that the Respondent does not have rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The Policy outlines non-exclusive circumstances (Policy, paragraph 4(b)) which, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith.


The Panel has established that the disputed domain name is confusingly similar to the CREDIT MUTUEL mark of the Complainant. Taking into account the reputation of the Complainant in France, where the Respondent seems to be located, the Panel finds that in all likelihood the Respondent was aware of the Complainant’s trademark at the time the disputed domain name was registered. Moreover, regarding the choice of the prefix “ebank”, which is an expression commonly used to designate online banking services it is likely that the Respondent has registered the disputed domain name with the Complainant and its mark in mind.
Furthermore, the Complainant demonstrates that the Respondent used a WhoIs proxy service to keep his identity private and that he registered the disputed domain name with fake or misused identity behind the proxy service. Given the nature of the Complainant’s business in banking and the heightened risk for possible phishing activities, the Panel concurs with UDRP decisions which consider that a deliberate concealment of identity and contact information may be a further indication of registration in bad faith (see Schering Corporation v. Name Redacted, WIPO Case No. D2012 0729; TTT Moneycorp Limited. v. Diverse Communications, WIPO Case No. D2001-0725).
Therefore, for all the above mentioned reasons, the Panel concludes that the Respondent has registered the disputed domain name in bad faith.

Concerning the criteria of bad faith in the use of the disputed domain name, the Panel finds that the disputed domain name is connected to an inactive page, which demonstrates that it is passively held by the Respondent.


Moreover, the Panel concurs with UDRP decisions which consider that the passive holding of a domain name that incorporates a widely known trademark without obvious use for an Internet purpose could constitute bad faith use (see Schneider Electric S.A. v. LLC “ALL-ENERGY”, WIPO Case No. D2015-0388; Confédération Nationale du Crédit Mutuel v. Bryna Cytrynbaum, WIPO Case No. D2010-0165). The lack of response to the Complaint and the Respondent’s concealment of its identity are further circumstances demonstrating bad faith use.
Finally the Complainant provides evidence that the Respondent has activated the disputed domain name’s email servers, which allows sending and receiving emails with any email address ending by “@ebank-creditmutuel.com”; such use can disrupt the Complainant’s online activities and could enable the Respondent, using this email address, to realize fraudulent actions while pretending to be the Complainant.
Thus, in view of the above, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith.


7. Decision



For 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 the Complainant.

Christiane Féral-Schuhl

Sole Panelist



Date: December 3, 2015



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