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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Credit Industriel et Commercial en abrйgй CIC, Confederation Nationale du Credit Mutuel v. Marketing Total S.A.

Case No. D2007-0753

 

1. The Parties

The First Named Complainant is Credit Industriel et Commercial en abrйgй CIC of Paris, France.

The Second Named Complainant is Confederation Nationale du Credit Mutuel, of Paris, France,

The Complainants are represented by MEYER & Partenaires, France.

The Respondent is Marketing Total S.A., West Indies, Saint Kitts and Nevis, of Saint Kitts and Nevis.

2. The Domain Names and Registrar

The disputed domain names <filbanqque.com> and <creditmutuell.com> are registered with Capitoldomains, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 23, 2007.

On May 24, 2007, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with both of the domain names at issue.

On May 24, 2007, Capitoldomains, LLC. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of both domain names at issue and providing the contact details in respect of each of the domain names.

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 May 31, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2007.

The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 26, 2007.

The Center appointed James Bridgeman as the sole panelist in this matter on July 11, 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

This Complaint has been filed by two Complainants in respect of two quite distinct domain names. Both Complainants are members of the same group of companies providing banking services and have therefore decided to bring both applications in one single Complaint.

The First Named Complainant is a French bank and a subsidiary of the Crйdit Mutuel-CIC group. The First Named Complainant provides services to approximately 3,627,922 clients with a network of 1,940 branches in France. It comprises eight regional banks and has an international presence through its branches in 37 countries across the world in Europe, Asia, Africa, Middle East, Latin and North America.

The First Named Complainant offers Internet facilities through the online banking service FILBANQUE by which its clients are enabled, to access information relating to their bank accounts and make transactions via the Internet.

The trade name and trademark FILBANQUE have been used by the First Named Complainant since 1992. The trademark FILBANQUE was registered as a French nominative trademark number 92402299 on January 1992 for classes 35, 36 and 42. This trademark was initially registered under the former name of the First Named Complainant, i.e. Compagnie financiиre de CIC et de l’Union Europйenne. It was subsequently renewed in January 2002 in the name of the First Named Complainant

The First Named Complainant is also the registered owner of the following registered trademarks:

French figurative trademark FILBANQUE number 95553426 registered on January 13, 1995; for classes 35, 36, 38;

French figurative trademark FILBANQUE number 95553427 registered on January 13, 1995, for classes 35, 36, 38;

French nominative trademark FILBANQUE number 01 3 126 064 registered on October 15, 2001, for classes 9, 16, 28, 41 and 42;

French figurative trademark FILBANQUE number 013130040 registered on November 7, 2001, for classes 9, 16, 28, 35, 36, 38, 41 and 42.

The First Named Complainant’s computing subsidiary, handles the online banking service by means of a web portal and/or hyperlinks that have actively and continuously resolved the online banking service dedicated to the First Named Complainant clients at least since November 2001. The First Named Complainant has registered and used the domain name <filbanque.com> since 1998, the domain name <filbanque.fr> since December 2004 and the domain name <filbanque.eu> since July 2006.

The Second Named Complainant consists of a network of 3100 offices in France managed through 18 regional banks. It is designated as the central body governing the network of 19 regional federations. The Second Named Complainant represents the cooperative bank Crйdit Mutuel in relationships with public authorities and is responsible for defending its interests. It is the second largest French international banking group, providing services to more than 10 million clients for more than a century. It has also an international presence and fame through branches displayed all over the world and in particular Europe and North Africa.

The Second Named Complainant also provides online banking services for its customers by means of a web portal that has been located at “www.creditmutuel.com” since 1997.

Since 1998, the First and Second Named Complainants have together become France’s fourth largest banking group and second-largest retail bank.

The Second Named Complainant is the registered owner of a large number of trademarks consisting or including the words CREDIT MUTUEL in France and abroad including the following trademarks:

French figurative trademark CREDIT MUTUEL, number 1475940 of July 8, 1988, in classes 35 and 36 of 1957 Nice Agreement, renewed on May 15, 1998;

French figurative trademark CREDIT MUTUEL, French figurative trademark number 16460012 of November 20, 1990, in classes 16, 35, 36, 38 (internet services) and 41 of Nice Agreement, renewed on November 20, 2000;

English semi-figurative trademark CREDIT MUTUEL, number 1464456 of May 18, 1991, under the priority of the French semi figurative trademark number 1146012 in class 36 of Nice Agreement, renewed on November 20, 2000.

The Second Named Complainant and its computing subsidiary Euro-Information are the registrants of numerous domain names, identical to or incorporating the trademark CREDIT MUTUEL including: <creditmutuel.com> registered since 1995; <creditmutuel.fr> registered since 1995; <creditmutuel.eu> registered since 2006; <creditmutuel.mobi> registered since 2006.

The Respondent

In the absence of a Response there is no information available to this Panel regarding the Respondent except for the information found on the Registrar’s Whois database and the information submitted by the Complainants in the Complaint.

According to the Whois database, the domain name <creditmutualle.com> was created on October 20, 2006, and the domain name <filbanqque.com> was created on November 17, 2006.

 

5. Parties’ Contentions

A. Complainants

The Complainants allege abusive registration and use of domain names <filbanqque.com> and <creditmutuell.com>, and request the transfer of said domain names to the Complainants.

The Complainants submit that the domain names are confusingly similar to the trademarks and service marks in which the Complainants have rights.

In this regard the Complainants rely on their respective trademark registrations listed above.

The Complainants assert that there is a confusing similarity between the trademark FILBANQUE and the domain name <filbanqque.com> and between the trademark CREDIT MUTUEL and the domain name <creditmutuell.com>.

The Complainants submit that the sole difference between the trademark FILBANQUE and the domain name <filbanqque.com> is the addition of the letter “q”. The domain name <filbanqque.com> is phonetically identical to the mark FILBANQUE since in French, “q” and “qq” are pronounced the same. Previous WIPO UDRP decisions have concluded that such a misspelling may be considered as a factor of confusion in itself, since a typing error could lead the average Internet user to one of the Respondent’s websites and distract him/her from the Complainants’ site.

In this regard the Complainants cite the decisions of panels in Crйdit Industriel et Commercial S.A., Banque Scalbert Dupont S.A. v. LaPorte Holdings, Inc., WIPO Case No. D2004-1110 (for domain names: <filebanque.com> and <filbank.com>) and Crйdit Industriel et Commercial S.A v. Name Privacy, WIPO Case No. D2005-0457 (mark: FILBANQUE; domain name: <filbanur.com>).

The Complainants similarly submit that the only difference between the trademark CREDIT MUTUEL and the domain name <creditmutuell.com> is the addition of the letter “l”.

The domain name <creditmutuell.com> has no specific meaning in either French or in English and the misspelling does not add any distinctiveness.

In this regard the Complainants refer to the reasoning applied by the panels in Telstra Corporation Ltd v. Warren Bolton Consulting Pty Ltd., WIPO Case No. D2000-1293 (in respect of the trademark BIGPOND and the domain name <bigpons.com>) and The Nasdaq Stock Market, Inc. v. Act One Internet Solutions, WIPO Case No. D2003-0103 (in respect of the trademark NASDAQ and the domain name: <nasdasq.com>).

The Complainants submit that each of the domain names are almost identical to the Complainants’ respective trademarks, the only difference being in each case the addition of only one letter.

The Complainants contend that quite clearly, the Respondent is engaging in the practice dubbed “typosquatting” and seeks to take advantage of Internet users who may type an incorrect address when seeking to access the Complainants’ websites.

The Complainants submit that the WIPO UDRP jurisprudence offers many examples of confusing similarity brought about through easily made typing errors by an Internet user such as DaimlerChrysler Corporation v. Worshiping, Chrisler, and Chr, aka Dream Media and aka Peter Conover, WIPO Case No. D2000-1272 (mark: Chrysler; domain names: crysler, chrisler, chrystier or christler) and Reuters Limited v Global Net 2000, Inc, WIPO Case No. D2000-0441 (mark: Reuters; domain names: wwwreuters.com, reters.com, ruters.com, reuers.com, reutersnews.com).

The Complainants submit that the Respondent has no rights or legitimate interests in respect of the domain names in dispute. To the Complainants’ knowledge, the Respondent has never registered the words FILBANQQUE or CREDITMUTUELL as trademarks and has never acquired any common law trademark rights in respect of these words.

Furthermore the Complainants have neither authorized nor licensed the Respondent in any way to use or exploit the FILBANQUE or CREDIT MUTUEL trademarks, to appropriate these domain names, or to otherwise associate itself with Complainants.

The Complainants note that they have been established in an earlier case Confйdйration Nationale du Crйdit Mutuel, Caisse Fйdйrale du Crйdit Mutuel Nord Europe v. Marketing Total S.A., WIPO Case No. D2007-0288 that the present Respondent infringed the rights of a member of the Complainants’ group of companies. It follows that the Respondent was aware of the Complainants’ and their respective rights in their famous marks when the Respondent registered the domain names <filbanqque.com> and <creditmutuell.com>.

The Complainants contend that the Respondent acquired said domain names <filbanqque.com> and <creditmutuell.com> for the purpose of diverting Internet traffic from the Complainants’ legitimate websites to websites containing click-through links from which financial revenue is received by the Respondent based upon the number of clicks. As such, the Respondent clearly intended to profit from the use of the domain names which are confusingly similar to Complainants’ famous trademarks. Such use of the <filbanqque.com> and <creditmutuell.com> domain names simply cannot be basis for any bona fide offering of goods or services.

Moreover, the Complainants contend that the Respondent appears to be using the trademarks of the Complainant as domain names for selling services similar to those offered by the Complainant or for diverting to other websites doing the same, in the absence of any sort of agreement or relation between them. This behavior cannot be a bona fide offering of services. The Respondent cites the decisions of the panels in similar cases Crйdit Industriel et Commercial S.A., Banque Scalbert Dupont S.A. v. LaPorte Holdings, Inc., WIPO Case No. D2004-1110, in relation to the domain names, <filebanque.com> and <filbank.com>), Crйdit Suisse Group v. Kingdomdatanet Networks, Inc., WIPO Case No. D2004-0846 for domain name <creditsuissefinance.com> in support of this proposition.

The Respondent. is a notorious cybersquatter as evidenced by previous Complaints filed against the Respondent which have resulted in a transfer of the domain name at issue. The Respondent is not known by either of the domain names at issue nor is the Respondent known by any of the other domain names which were transferred from the Respondent in previous proceedings under the Policy.

The Complainants contend that the Respondent has not made any legitimate non-commercial or fair use of the domain names <filbanqque.com> or <creditmutuell.com>. The Respondent’s websites have a series of click-though links which when accessed generate financial gain for Respondent. It is clear that Respondent is using the infringing domain names to mislead and divert the Complainants’ customers.

The Complainants contend that it follows that the Respondent has no rights or legitimate interests in respect of the disputed domain names.

The Complainants further submit that the domain names at issue were registered and are being used in bad faith.

In this regard the Complainants submit that the Respondent must have been aware of the Complainants and their respective rights in the FILBANQUE and CREDIT MUTUEL trademarks when registering the domain names in dispute. The Respondent must have been aware that use of the domain names would inevitably infringe the Complainants’ respective trademark rights. The Respondent is a

well-known cybersquatter and has engaged in a pattern of bad faith registrations of well-known trade marks.

In support of the allegation that the Respondent has engaged in a pattern of bad faith registrations, the Complainants submit that numerous WIPO UDRP panels established under the Policy have already found the Respondent to be a cybersquatter viz. Confйdйration Nationale du Crйdit Mutuel, Caisse Fйdйrale du Crйdit Mutuel Nord Europe v. Marketing Total S.A., WIPO Case No. D2007-0288 for domain name <creditmutueldunord.com>; Shaw Industries Group Inc. and Columbia Insurance Company v. Marketing Total SA., WIPO Case No. D2007-0224 for domain name <shawhardsurfaces.com>; Rude Chalets Limited v. Marketing Total S. A., WIPO Case No. D2007-0220 for domain name <rudechalet.com>; Wal-Mart Stores Inc. v. Marketing Total S.A., WIPO Case No. D2007-0419 for domain names <walmartcorporation.com> and <walmartcredircard.com>; HBH, Limited Partnership. v. Marketing Total S.A., WIPO Case No. D2006-1452 for domain name <honeybakedstore.com>.

The Complainants further refer to the decisions of numerous panels appointed by the National Arbitration Forum holding that the Respondent has registered and is using domain names in bad faith viz. Enterprise Rent-A-Car Company v. Marketing Total S.A. NAF No. FA 843582 for domain name <emterprise.com>; Bealls, Inc. v. Marketing Total S.A. n° 882153 for domain name <beallsonline.com>; Hershey Entertainment & Resorts Company v. Marketing Total S.A. NAF No. FA 888088 for domain name <hersheycountryclub.com>; Robert Bosch GmbH v. Marketing Total S.A. n° 888552 for domain name <boschcompany.com>; SR Holdings, Inc. v Marketing Total S.A. NAF No. FA 915273 for domain names <sperrytop-sider.com> and <sperrybluefish.com>; Sico Incorporated v. Marketing Total S.A. NAF No. FA 949597 for domain name <sicoinsa.com>.

Addressing the allegation that the Respondent is using the domain names in issue in bad faith, the Complainants submit that the domain names <filbanqque.com> and <creditmutuell.com> resolve to a portal site containing click-through links from which financial revenue is received by the Respondent based upon the number of clicks. Using domain names that are confusingly similar to the Complainants trademarks and service marks for such purpose amounts to bad faith use. The Complainants cite the decision of the panel in Deloitte Touche Tohmatsu v. Henry Chan, WIPO Case No. D2003-0584 for domain name <deloitt.com> in support of this submission.

The Complainants state that in a recent decision Credit Industriel et Commercial S.A. and Confйdйration Nationale du Credit Mutuel v. Spiral Matrix, WIPO Case No. D2006-0271 for domain names <cicenterprise.com>, <creditmutuelocean.com>, <filban.com>), the respondent’s similar use was considered to be “either attracting Internet users for commercial gain or simply to disrupting the Complainants’ relationship with its customers or potential customers”. The panel in that case found that the respondent’s conduct was evidence of registration and use in bad faith under paragraphs 4(b)(iii) and (iv) of the Policy.

The Complainants further contend that according to the panels in Crйdit Industriel et Commercial S.A. v. Web Advertising Corp. WIPO Case No. D2006-1418 for domain name <filbanq.com>, the fact that the sponsored links are in French is an additional clue which stresses out the bad faith of the Respondent wanting to divert French customers from the original website.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 4(a) of the Policy places on the Complainant the onus of proving that:

(i) the domain name in dispute 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 said domain name; and

(iii) the said domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Taking each of the Complainants’ trademarks and the domain names in dispute in turn:

The First Named Complainant has established that it has rights through its above listed registrations in the trademark FILBANQUE. The domain name <filbanqque.com> is almost identical to the First Named Complainant’s said trademark except that it incorporates the additional letter “q”.

Furthermore the domain name <filbanqque.com> is phonetically identical to the First Named Complainant’s mark FILBANQUE in both French and in English. In both of those languages the letter “q” in the trademark and the letters “qq” in the domain name would be pronounced the same.

The additional letter “q” does not in any way distinguish the domain name <filbanqque.com> from the trademark FILBANQUE and it follows that the domain name <filbanqque.com> is confusingly similar to the trademark and service mark in which the First Named Complainant has rights.

The Second Named Complainant is the owner of and has rights in the trade mark CREDIT MUTUEL by virtue of its above listed trademark registrations. The domain name <creditmutuell.com> is almost identical to the Second Named Complainant’s said trademark except for the inclusion of the additional letter “l”.

Both the Second Named Complainant’s said trademark and the <creditmutuell.com> domain name are phonetically identical in both English and French and furthermore the domain name <creditmutuell.com> has no specific meaning either in French or in English. The misspelling of the Second Named Complainant’s trademark does not add any distinctiveness.

It follows that the domain name <creditmutuell.com> is confusingly similar to the trademark CREDIT MUTUEL in which the Second Named Complainant has Rights.

The Complainants have established the first element of the test set out in paragraph 4(a) of the Policy in respect of both domain names in dispute.

B. Rights or Legitimate Interests.

The Complainants have put forward a credible prima facie case that the Respondent has no rights or legitimate interest in respect of either of the domain names in dispute. In such circumstances the onus shifts to the Respondent to establish that it has such rights or interest. In casu, the Respondent has not filed any Response and, the Complainant is entitled to succeed on the second part of the test in paragraph 4(a) of the Policy.

The Respondent is engaged in predatory use of the Complainants’ well-known trademarks by using domain names that are almost identical to the Complainants’

well-known trademarks to divert Internet users to click through sites from which the Respondent is achieving an income.

The Respondent does not have any rights in the words “filbanque”, “filbanqque”, “credit mutual” or “creditmutuelle”. It has in all likelihood chosen the domain names to take unlawful advantage of the Complainants’ goodwill in their respective marks. The Respondent cannot achieve any rights in these trademarks by such activity and such activity does not amount to any legitimate interest in either of the domain names.

The Complainants have therefore succeeded in establishing the second element of the test in paragraph 4(a) of the Policy in respect of each of the domain names in dispute.

C. Registered and Used in Bad Faith

On the balance of probabilities the Respondent has engaged and continues to engage in typosquatting as defined above, in choosing, registering and using both of the domain names in dispute. Such activity in the present case amounts to bad faith registration and use of the domain names in dispute.

It is improbable that the Respondent choose either of these domain names by accident without any reference to the Complainants’ well-known marks. The evidence is that the Respondent was well aware of the Complainants and their trademarks when the domain names were chosen and registered. Furthermore the domain names were most probably chosen to take predatory advantage of the Complainants’ trademarks.

This Panel is confirmed in its finding that the Respondent is engaged in typosquatting amounting to bad faith registration and use, by the fact that the Respondent has clearly engaged in a pattern of bad faith registration and use of other domain names and has been found to be in breach of the provisions of the Policy in numerous decisions of other panels appointed under the Policy.

The Complainants have therefore established the third and final element of the test set out on paragraph 4(a) of the Policy in respect of each of the domain names in dispute and entitled to succeed in their applications.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(a) of the Policy and 15 of the Rules, the Panel orders that: the domain name <filbanqque.com> and the domain name <creditmutuell.com> be transferred to the Complainants.

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James Bridgeman
Sole Panelist

Dated: July 25, 2007