1. The Panel finds that the disputed domain name is confusingly similar to the Complainant’s figurative trademark BOLLORÉ as it consists of a clear misspelling of the core of the Complainant’s trademark “bolloré”, where the two letters “o” have been replaced by the number “0” and the accent on the last letter “e” has been removed. As stated in a number of prior decisions rendered under the UDRP, these minor changes and the addition of the Top-Level Domain “.com” are not sufficient to prevent a finding of confusing similarity.
2. The Complainant stated that the Respondent is not affiliated with or authorized by the Complainant in any way. There is no evidence of the fact that the Respondent might have been commonly known by the disputed domain name or by a name corresponding to the disputed domain name. According to the evidence on records, the Respondent has not pointed the disputed domain name to an active website and has not submitted any evidence showing that it made use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services, or that it has made a legitimate non-commercial or fair use of the disputed domain name. Therefore, and in the absence of a Response, the Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interest in the disputed domain name.
3. As to the bad faith at the time of the registration, the Panel finds that, in light of the distinctiveness of the Complainant’s trademark, with which the disputed domain name is confusingly similar, and of the prior registration and use of the trademark BOLLORÉ by the Complainant, the Respondent was more likely than not aware of the Complainant’s trademark at the time of the registration of the disputed domain name.
The disputed domain name has not been used in connection with an active web site, i.e. has been passively held. As established in a number of prior cases, the concept of “bad faith use” in paragraph 4(b) of the Policy includes not only positive action but also passive holding, especially in cases of domain name registrations corresponding to distinctive and well-known trademarks; see i.a. the landmark case Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The Panel also notes that, as highlighted by the Complainant, the disputed domain name has been configured with the indication of MX records, a circumstance that suggests that the domain name <b0ll0re.com> might be used by the Respondent to deliver email communications to third parties from email addresses based on the disputed domain name, possibly pretending to be the Complainant. In light of Internet users’ presumption of trustworthiness in domain names consisting in or incorporating registered trademarks, the Panel finds that, when, like in the present case, domain names are so obviously connected to the trademark owner, the potential risks posed by phishing are to be considered an additional circumstance evidencing bad faith.
|