The Complainant is Crédit Agricole Consumer Finance (CA Consumer Finance) of Paris, France, represented by Pinsent Masons LLP, France.
The Respondent is Fawaz Chakik, eShopWays Communications of Tripoli, Lebanon.
The disputed domain name <creditlift.net> is registered with GoDaddy.com, LLC. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 4, 2013. On April 4, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 4, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the disputed domain name.
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 the Respondent of the Complaint, and the proceedings commenced on April 9, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2013. The Response was filed with the Center on April 29, 2013.
The Center appointed James A. Barker as the sole panelist in this matter on May 8, 2013. 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 disputed domain name was registered on September 9, 2011.
The Complainant is a well-known French banking and insurance service group. It is the holder of a number of trademarks consisting of or including the words “credit” and “lift” in various countries throughout the world. These trademarks were filed before the registration of the disputed domain name. The Complainant’s marks include French marks CREDIT LIFT, filed in July 2006.
The Complainant is also the registrant of domain names which include its mark, including <creditlift.com> registered in October 2004, as well as similar country-code top-level domain names.
The Complainant has previously been a successful complainant under the Policy in relation to its marks. More recently, UDRP cases in which the Complainant has been involved include: Crédit Agricole S.A. v. ICS INC. / Whois Privacy Protection Service, Inc., WIPO Case No. D2012-1755, and Crédit Agricole S.A. v. Magdalena Bialowas, WIPO Case No. D2011-1739.
The following is summarized from the Complaint:
In 2007, the Complainant developed a new area of its activity: loan broking called “Credit Lift”. Through Credit Lift, the Complainant provides its clients and partners with a range of personalized products and services dedicated to the brokerage market, diversified loan offers, and loan consolidations.
The disputed domain name is identical or confusingly similar to the Complainant’s CREDIT LIFT trademark.
The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant provides a screenshot of the website to which the disputed domain name reverted in March 2013. That website, in French, is prominently titled “Crédit pour votre Lift”, and otherwise gives the appearance of offering loans in various categories, including to persons who are excluded from the traditional loan market and who wish to seek a loan to have plastic surgery. It is obvious that the Respondent has no legitimate interest in the disputed domain name. The Respondent has no authorization from the Complainant, is not commonly known by the disputed domain name, and has no relevant trademarks.
The disputed domain name was registered and is being used in bad faith. The Respondent was undoubtedly aware of the Complainant’s marks and the Complainant’s domain names which include its CREDIT LIFT mark. The Respondent registered the disputed domain name to tarnish the reputation of the Complainant and to try to abusively benefit from the Complainant’s reputation in connection with financial services.
The disputed domain name was registered and has been used in bad faith. In particular, the Complainant points to bad faith within the meaning of paragraph 4(b)(iv) of the Policy, which provides that bad faith may be found in circumstances where the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. The Complainant also points out that the Respondent’s website contains inaccurate information. For example, the Respondent’s website states that CREDIT LIFT banking services are provided by the company Sofinco, but that Sofinco changed its name April 1, 2010 to “CA Consumer Finance”.
The following is summarized from the Response:
The Complainant’s domain name <creditlift.com> was registered 10 months after the Respondent’s registration of the disputed domain name. A quick look at the archived pages for <creditlift.fr> at “www.archive.org” indicate that the Complainant’s domain names (<creditlift.com> and <creditlift.fr>) were both “inactive” and empty of any information concerning “credit lift”.
Apparently on this basis, the Respondent says that it was not possible for it to know of the Complainant and, as such, it was not possible for it to have bad faith in relation to the Complainant’s domain names, which were not up and running when the disputed domain name was launched.
The Respondent says that its target market is very different to the Complainant’s and, as such, the disputed domain name could not be confusing for Internet users. The Respondent’s website focuses on promoting “plastic surgery loans” while <creditlift.com> and the Complainant’s CREDIT LIFT trademark promote services for brokers. The Respondent also says that the Complainant’s mark is used only in connection with its services in France, whereas the Respondent’s website is in both French and English, and is linked from various other international websites. For these reasons, the Respondent also says that it has rights or legitimate interests in the disputed domain name.
For much the same reasons, the Respondent denies that it registered and has used the disputed domain name in bad faith.
The Respondent stated that, on the date it received the Complaint, it replied that it had no objection to cancelling the disputed domain name, but received no reply from the Complainant. (In response to a communication from the Center stating that the Complainant may wish to explore settlement, the Complainant confirmed that it wished these proceedings to continue.)
Under paragraph 4(a) of the Policy, to succeed the Complainant must prove that:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
In considering these elements, paragraph 15(a) of the Rules provides that the Panel shall decide the Complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable. These elements are discussed in turn below, immediately after two procedural issues: one in relation to a supplemental filing by the Complainant; the other in relation to the Respondent’s statement that, on the day it received the Complaint, it replied stating that it did not have any objection to cancelling the disputed domain name.
The Complainant made a supplemental filing in this case on May 7, 2013. As noted by the Center in acknowledging that filing, neither the Policy nor the Rules include express provision for supplemental filings by either party.
In this case, the Complainant’s supplemental filing essentially sought to reargue issues raised in the Complaint, and take issue with a number of statements in the Response relating to the timing of the Complainant’s domain name registrations.
A Panel has the discretion to admit or invite further filings under paragraphs 10(a), (b), (d), and 12 of the Rules. The Panel considers that such filings should not be admitted as a general rule. In general, previous UDRP panels have considered that such submissions should only be admitted in exceptional circumstances, such as where the party could not reasonably have known the existence or relevance of the further material when it made its primary submission; that if further material is admitted, it should be limited so as to minimize prejudice to the other party or the procedure; and that the reasons why the Panel is invited to consider the further material should, so far as practicable, be set out separately from the material itself. See Mejeriforeningen Danish Dairy Board v. Cykon Technology Limited, WIPO Case No. D2010-0776.
Generally following this approach, the Panel has decided not to admit the Complainant’s supplemental filing. That filing mainly sought to reargue and emphasize matters already addressed in the Complaint.
Another procedural issue arises in relation to the Respondent’s apparent concession that it had no objection to cancelling the disputed domain name. Such an offer suggests that the Respondent was willing to concede its registration to the Complainant. Is necessary for the Panel to consider each element of the Complainant’s case in the face of this concession?
This question is relevantly addressed in paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), which summarizes the majority of UDRP panel views on the approach to a respondent’s consent to the remedy sought by the Complainant. The WIPO Overview 2.0 relevantly notes that: “Where the parties to a UDRP dispute have not succeeded in settling a case between themselves prior to the rendering of a panel decision, but the respondent has given its unilateral and unambiguous consent on the record to the remedy sought by the complainant, a panel may at its discretion order transfer (or cancellation) of the domain name on that basis alone. Some panels have declined to grant a remedy solely on the basis of the respondent’s consent, but rather elected to proceed to a substantive determination of the merits”.
Having regard to the majority of UDRP panel opinion on this issue, the Panel has proceeded to consider each element of the case which the Complainant must establish. This is because, in this case, it is not unambiguous that the Respondent has relevantly consented, having regard to the Respondent otherwise contesting the Complainant’s allegations, including the allegation of bad faith, in the Response.
The first element which the Complainant must establish is that the trademark is identical or confusingly similar to a trademark in which it has rights. There is no doubt that the Complainant in this case has relevant trademark rights. The Complainant provided evidence of those registrations in the Complaint.
It is well established that the “.net” extension is to be disregarded for the purpose of comparison between the Complainant’s mark and the disputed domain name. Disregarding that extension, it is self-evident that the disputed domain name is relevantly identical to the Complainant’s mark. Being identical, it is redundant to consider whether the disputed domain name is confusingly similar to the Complainant’s mark.
For these reasons, the Panel finds that the Complainant has established this first element under paragraph 4(a) of the Policy.
The second element which the Complainant must establish is that the Respondent has no rights or legitimate interests in the disputed domain name. Although the Complaint is relatively brief, the Complainant has established a prima facie case against the Respondent in this respect, with its evidence and argument. The issue then is whether the Respondent has rebutted that case.
The Respondent appears to base his rights or legitimate interests primarily on the allegation that he trades in a different market (loans in relation to plastic surgery, rather than more general financial services of the Complainant). This argument is misplaced. The Complainant offers financial credit. So, purportedly, does the Respondent. Fine differences between the Respondent’s claimed target market and the Complainant’s does not change this fact. The Respondent’s use of a relevantly identical domain name for a website offering for sale overlapping products and services is neither a bona fide offering of goods or services, nor is it a legitimate non-commercial or fair use pursuant to the Policy. UDRP panels in such circumstances, similar to those of this case, have previously found respondents to lack rights or legitimate interests: See e.g., in relation to financial services, Option One Mortgage Corporation v. Option One Lending, WIPO Case No. D2004-1052 and the cases cited therein.
For these reasons, the Panel finds that the Complainant has established this second element under paragraph 4(a) of the Policy.
The third thing a Complainant must establish is that the disputed domain name was registered and has been used in bad faith. Paragraph 4(b) of the Policy includes illustrative circumstances which, if found, are evidence of the registration and use of the domain name in bad faith. These include paragraph 4(b)(iv) which provides that there is bad faith in circumstances where:
“(iv) by using the domain name, you [the Respondent] 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.”
It is not contested that the Respondent registered the disputed domain name in September 2011, long after the Complainant registered its trademark in 2006 for CREDIT LIFT. Neither is it contested that the Complainant is a very large corporate entity with a substantial Internet presence in relation to the field of financial services. As noted above, the Respondent purports to operate in a closely related field. The Panel therefore considers it reasonable to infer that the Respondent was aware of the Complainant and its mark when he registered, and subsequently used, the disputed domain name.
The Complainant has a substantial reputation, of which it provides evidence. Additionally, the Complainant’s reputation is demonstrated by the multiple previous UDRP cases (including those cited further above) brought by the Complainant against abusive registration of its marks in domain names. The Respondent provided no evidence of having developed a separate reputation. As such, the Panel considers it reasonable to infer that the Respondent registered the disputed domain name deliberately to create confusion with the Complainant and, by doing so, increase traffic to his own website offering related services. Such a use of the disputed domain name is evidence of bad faith.
For these reasons, the Panel finds that the Complainant has established this third element under paragraph 4(a) of the Policy.
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 <creditlift.net> be transferred to the Complainant.
James A. Barker
Sole Panelist
Date: May 22, 2013