The Complainants are Confédération Nationale Du Crédit Mutuel, France and Crédit Industriel et Commercial S.A., France, represented by Mayer and Partners, France.
The Respondents are WhoisGuard Protected, WhoisGuard, Inc., Panama / Unknow Unknow, Moodhype, Seychelles and WhoisGuard Protected, WhoisGuard, Inc., Panama / Willy Mix, Luxembourg.
The disputed domain names <cic.exchange>, <creditmutuel.finance> and <creditmutuel.market> (“Disputed Domain Names”) are registered with NameCheap, Inc. (the “Registrar”).
The Complaint was filed by the Confédération Nationale Du Crédit Mutuel with the WIPO Arbitration and Mediation Center (the “Center”) on September 18, 2020. On September 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names <creditmutuel.market> and <creditmutuel.finance>. On September 18, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrants and contact information for the Disputed Domain Names <creditmutuel.market> and <creditmutuel.finance> which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant Confédération Nationale Du Crédit Mutuel on September 22, 2020 providing the registrants and contact information disclosed by the Registrar, and requesting the Complainant to amend the Complaint adding the Registrar-disclosed registrants as formal Respondents and provide relevant arguments or evidence demonstrating that all named Respondents are, in fact, the same entity and/or that all domain names are under common control; and/or file a separate complaint for any domain name(s) for which it is not possible to demonstrate that all named Respondents are in fact the same entity and/or that all domain names are under common control and indicate (by short amendment or reply email) which domain name(s) will no longer be included in the current Complaint. The Complainant Confédération Nationale Du Crédit Mutuel filed an amended Complaint on September 24, 2020 adding the Disputed Domain Name <cic.exchange> to the Complaint and Credit Industriel Et Commercial S.A. as a Complainant. On September 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name <cic.exchange>. On September 29, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name <cic.exchange>. The Center sent an email communication to the Complainants on October 1, 2020 providing the registrants and contact information in connection with the Disputed Domain Names disclosed by the Registrar, and requesting the Complainants to amend the Complaint. The Complainants filed a second amended Complaint on October 5, 2020. On October 7, 2020, the Center noted that the Registrant/Admin/Tech/Billing Country for <creditmutuel.market> is “Seychelles”. On October 12, 2020, the Center noted that there appears to be at least prima facie grounds sufficient to warrant accepting the Complaint for the Panel’s final determination of the consolidation request on appointment.
The Center verified that the Complaint together with the amended Complaints 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 12, 2020. On October 12, 2020, the Respondent UNKNOW UNKNOW, MOODHYPE sent an informal communication to the Center. In accordance with the Rules, paragraph 5, the due date for Response was November 1, 2020. The Respondent did not submit any formal response. On November 2, 2020, the Center informed the Parties that it would proceed to Panel Appointment.
The Center appointed Gabriela Kennedy as the sole panelist in this matter on November 10, 2020. 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 Complainants, Confédération Nationale Du Crédit Mutuel and Crédit Industriel Et Commercial S.A are both members of the same banking group known as “Groupe CM11”.
The first Complainant, Confédération Nationale Du Crédit Mutuel, is the political and central body for the banking group Crédit Mutuel, which is the one of the largest banking and insurance services provider in France. Crédit Mutuel has been providing its services for more than a century and currently operates 3,178 offices in France. The first Complainant owns and operates in particular the domain names <creditmutuel.com>, <creditmutuel.fr> and <creditmutuel.bank>.
The first Complainant is also the owner of numerous trade mark registrations for the CRÉDIT MUTUEL mark in various jurisdictions, including, inter alia, the figurative CRÉDIT MUTUEL trade mark (Reg. No. 1475940) registered on July 8, 1988 in France, the figurative CRÉDIT MUTUEL trade mark (Reg. No. 1646012) registered on November 20, 1990 in France, and the CRÉDIT MUTUEL trade mark (Reg. No. 9943135) registered on October 20, 2011 in the European Union.
The second Complainant, Credit Industriel et Commercial, was established in 1859 and is one of the oldest banks in France. Fédération du Crédit Mutuel Centre Est Europe is the majority shareholder of the second Complainant. The second Complainant has more than 4.7 million customers and operates over 2,000 agencies worldwide. The second Complainant owns the domain name <cic.fr>.
The second Complainant is also the owner of numerous trade mark registrations for the CIC mark in various jurisdictions, including, inter alia, the CIC trade mark (Reg. No. 1358524) registered on June 10, 1986 in France, and the CIC trade mark (Reg. No. 005891411) registered on May 10, 2007 in the European Union.
The Respondent registered <creditmutuel.market> on April 29, 2020, <creditmutuel.finance> on September 10, 2020 and <cic.exchange> on April 25, 2020. According to the evidence provided by the Complainant, the Disputed Domain Names either resolve to a commercial parking page that contains pay-per-click links to the Complainants’ competitors or resolve to an inactive page.
The Complainants’ primary contentions can be summarized as follows:
(a) The Complainants are the registered owners of the CRÉDIT MUTUEL and CIC marks. The Disputed Domain Names are confusingly similar to the Complainants’ trade marks, which have been wholly incorporated into the Disputed Domain Names. The addition of the generic Top-Level-Domains (“gTLD”) “.market”, “.finance” or “.exchange” are not sufficient in distinguishing the Disputed Domain Names from the Complainants’ CRÉDIT MUTUEL and CIC marks;
(b) The Respondent does not have any rights or legitimate interests in the Disputed Domain Names. The Complainants have never authorized or given permission to the Respondent, who is not associated with the Complainants in any way, to use the Complainants’ trade mark. The Respondent was not commonly known by the Disputed Domain Names; and
(c) The Complainants’ trade marks are well known. The Respondent must have been aware of the Complainants’ trade marks at the time of registration of the Disputed Domain Names and it is unlikely that the Respondent had devised the Disputed Domain Names on its own. The Respondent seeks to create an impression that it is associated with the Complainants and to mislead Internet users by using the gTLDs that are common in the banking and financial sectors. The Respondent’s use of WhoIs proxy services also indicates a fraudulent intention on their part. Furthermore, the Disputed Domain Names either resolve to a commercial parking page that contains links to the Complainants’ competitors or resolve to an inactive page. As such, the Disputed Domain Names were registered and has been used by the Respondent in bad faith.
On October 12, 2020, the Respondent submitted an informal response to the Center claiming that it will initiate a “procedure for non-impartial arbitration” and seek compensation from the Complainants in the amount of approximately USD 89,000 for repurchasing the Disputed Domain Names which were acquired “on a personal basis”. The Respondent, however, did not reply formally to the Complainants’ contentions.
Panels have typically treated a respondent’s submission of an informal response that merely provides unsupported conclusory statements and/or that fails to address the case merits in a similar manner as a respondent default. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). As the Respondent’s informal response does not address the elements of the Policy and simply contains a threat to take legal action against the Complainants, the Panel considers that such communication does not have impact in this decision and considers the Respondent to have defaulted in responding to the Complainants’ contentions.
While the fact that the Respondent has not submitted a formal response does not automatically result in a decision in favour of the Complainants, the Respondent’s default in responding to the Complainants’ contentions may result in the Panel drawing appropriate inferences from such default. The Panel may also accept all reasonable and supported allegations and inferences flowing from the Complainants as true (see Entertainment Shopping AG v. Nischal Soni, Sonik Technologies, WIPO Case No. D2009-1437 and Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403).
This Complaint was filed by multiple complainants. In assessing whether a complaint filed by multiple complainants may be brought against a single respondent, panels typically look at whether (i) the complainants have a specific common grievance against the respondent, or the respondent has engaged in common conduct that has affected the complainants in a similar fashion, and (ii) it would be equitable and procedurally efficient to permit the consolidation. See section 4.11.1 of the WIPO Overview 3.0.
In this case, the Panel notes that:
(i) both Complainants are members of the same banking group “Groupe CM11”;
(ii) the Disputed Domain Names all incorporate the main trade marks owned by each of the Complainants;
(iii) the arguments that would have been made by each Complainant if there were separate complaints are virtually identical; and
(iv) the Respondent’s acts have affected the rights and interests of both Complainants in a similar manner.
Therefore, based on the above, the Panel finds that this criteria is satisfied.
Moreover, as the Respondent neither objected to the consolidation of the Complainants nor indicated that it would suffer any prejudice from the consolidation, the Panel is of the view that such consolidation is fair and equitable to all Parties and it is therefore procedurally efficient to allow the Complainants to file a single Complaint.
Accordingly, the Panel considers that this Complaint, which was filed by multiple Complainants, should be permitted.
Section 4.11.2 of the WIPO Overview 3.0 provides that where a complaint is filed against multiple respondents, panels will take into account whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties.
In this case, the Complainants argue that:
(i) all of the Disputed Domain Names were registered with the same Registrar, with the same Name Servers, and used the same privacy and proxy services;
(ii) all of the Disputed Domain Names reproduce the well-known trade mark of each of the Complainants, who are members of the same banking group;
(iii) all of the Disputed Domain Names contain a gTLD that refers to the banking and financial industry;
(iv) the email addresses of the registrants of the Disputed Domain Name are registered with the same uncommon provider;
(v) the Disputed Domain Names <cic.exchange> and <creditmutuel.market> were registered within the same period of time by Unknow Unknow, Moodhype;
(vi) the panel in Confédération Nationale du Crédit Mutuel v. WhoisGuard Protected, WhoisGuard, Inc. / Unknow Unknow, Moodhype, WIPO Case No. D2020-1279 held that the disputed domain names <creditmutuel.email> and <creditmutuel.exchange> were under the common control of the respondent, and following that decision, the Complainants received vindictive messages from the respondent; and
(vii) the courier service used for the delivery of the Written Notice informed the Center that the postal address for the registrant Willy Mix was not valid;
(viii) it would be unfairly detrimental to the Complainants to file separate UDRP complaints against the Respondent.
The Panel also notes that the Respondent did not provide any substantive response to the Complaint (neither any communication regarding the Complainant’s consolidation request), but Unknow Unknow, Moodhype simply submitted informal responses containing legal threats to the Complainants.
In light of the above, the Panel accepts the Complainants’ contentions and finds that the Complainants have established that the Disputed Domain Names are more likely than not under the common control of the Respondent and it would be fair and equitable to all Parties and procedurally efficient to have the Complainants’ claims consolidated against the registrants of the Disputed Domain Names.
As such, the Panel allows the consolidation as requested by the Complainants.
Under paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainants have 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 by the Respondent in bad faith.
The Panel accepts that the Complainants have rights in the CRÉDIT MUTUEL and CIC trade marks, based on their various trade mark registrations.
It is well established that in making an enquiry as to whether a trade mark is identical or confusingly similar to a domain name, the gTLD (“.exchange”, “.market”, and “.finance” in this case) is generally disregarded. See section 1.11 of the WIPO Overview 3.0.
The Disputed Domain Names incorporate the Complainants’ CRÉDIT MUTUEL and CIC trade marks in their entirety.
The Panel finds that the Disputed Domain Names are identical to the Complainants’ CRÉDIT MUTUEL and CIC trade mark, and accordingly, paragraph 4(a)(i) of the Policy is satisfied.
Once a complainant establishes a prima facie case in respect of the lack of rights or legitimate interests of a respondent in a disputed domain name, the respondent then carries the burden of demonstrating that it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See section 2.1 of the WIPO Overview 3.0.
The Panel accepts that the Complainants have not authorised the Respondent to use the CRÉDIT MUTUEL or CIC trade marks, and there is no relationship between the Complainants and the Respondent, which would otherwise entitle the Respondent to use the Complainants’ trade marks. Accordingly, the Panel is of the view that a prima facie case has been established and it is for the Respondent to show rights or legitimate interests in the Disputed Domain Names. As the Respondent has not submitted a formal response, the Panel will assess the case based on the reasonable inferences that can be drawn from the Complainants’ evidence.
Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the Disputed Domain Name by demonstrating any of the following:
(i) before any notice to him 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 was in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the Disputed Domain Name, even if he has acquired no trade mark 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 trade mark or service mark at issue.
There is no evidence to suggest that the Respondent’s use of, or demonstrable preparations to use the Disputed Domain Names or a name corresponding to the Disputed Domain Names was in connection with a bona fide offering of goods or services, since the Disputed Domain Names either resolve to a commercial parking page that contains links related to the banking, insurance, real estate and financial sector (including links to the websites operated by the Complainants’ competitors) or are connected to an inactive page. The Panel finds that the commercial parking page was used by the Respondent to direct traffic to websites operated by third parties either for the Respondent’s own commercial gain or for the commercial gain of the operators of those websites, and that the non-use of the Disputed Domain Names does not constitute a bona fide offering of goods or services (see Philip Morris USA Inc. v. Gabriel Hall, WIPO Case No. D2015-1779).
There is also no evidence to prove that the Respondent has trade mark rights corresponding to the Disputed Domain Names, or that it has become known by the Disputed Domain Names. Further, no evidence has been provided to suggest that the Disputed Domain Names have been used in connection with any legitimate noncommercial or fair use within the meaning of paragraph 4(c)(iii) of the Policy.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Names and the Complainants have satisfied paragraph 4(a)(ii) of the Policy.
UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar to a widely-known trade mark by an unaffiliated entity (particularly domain names which incorporate a mark plus a descriptive term) can already by itself create a presumption of bad faith. See paragraph 3.1.4 of the WIPO Overview 3.0.
The Complainants’ CRÉDIT MUTUEL and CIC trade marks appear to be fairly well known. The Panel accepts the Complainants’ argument that the Respondent must have been aware of the Complainants and their rights in the CRÉDIT MUTUEL and CIC trade marks when registering the Disputed Domain Names. As such, the fact that the Disputed Domain Names incorporate the Complainants’ trade marks in their entirety with the gTLDs “.exchange”, “.market”, and “.finance” (which are related to the Complainants’ business field) creates a presumption of bad faith.
In addition, the Panel finds that the following factors further support a finding that the Disputed Domain Names have been registered and are being used by the Respondent in bad faith:
(i) the Respondent failed to submit a formal response to the Complainants’ contentions and has provided no evidence of any actual or contemplated good faith use by it of the Disputed Domain Names;
(ii) it is difficult to conceive of any plausible use of the Disputed Domain Names that would amount to good faith use, given that the Disputed Domain Names are identical to the Complainants’ trade marks, and that the Disputed Domain Names either resolve to a commercial parking page that contains links to third parties websites or are connected to an inactive page (which would not prevent a finding of bad faith);
(iii) noting the composition of the Disputed Domain Names, any use of the Disputed Domain Names would likely mislead Internet users into believing the Disputed Domain Names are operated by, associated with and/or endorsed by the Complainants, particularly given that the Disputed Domain Names wholly incorporate the Complainants’ CRÉDIT MUTUEL and CIC trade marks.
In the circumstances, the Panel finds that the Respondent registered and has been using the Disputed Domain Names in bad faith, and paragraph 4(a)(iii) of the Policy has been satisfied.
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 <cic.exchange> be transferred to the Complainant, Credit Industriel Et Commercial, and the Disputed Domain Names <creditmutuel.finance> and <creditmutuel.market> be transferred to the Complainant, Confédération Nationale du Crédit Mutuel.
Gabriela Kennedy
Sole Panelist
Date: November 24, 2020