This is a proceeding pursuant to Paragraph 4 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 CAC Supplemental Rules.
Paragraph 15 of the Rules provides that the Panel shall decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
According to Paragraph 4(a) of the Policy, a complainant must prove each of the following: (A) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (B) the respondent has no rights or legitimate interests in respect of the domain name; (C) the domain name has been registered and is being used in bad faith.
A. Identical or confusingly similar domain name
The Complainant demonstrated that it owns the asserted EU trademark registration for the word mark "BOURSORAMA", which was registered long before the registration of the disputed domain name by the Respondent. It is well established that a nationally or regionally registered trademark confers on its owner sufficient rights to satisfy the requirement of having trademark rights for the purposes of standing to file a UDRP case. Therefore, the Panel finds that the Complainant has established such rights.
It is also well established that the generic top-level suffix .com may be disregarded when considering whether a disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights, as it is a necessary technical requirement of a domain name.
The disputed domain name incorporates the Complainant's trademark "BOURSORAMA" in its entirety. The additional words “CLIENTS” and “BANQUE” are generic words understandable not only to French speakers, which are descriptive particular in the field in which the Complainant is active, i.e. online banking and other online financial services. With that in mind, the Panel agrees with the Complainant that adding these additional words to the Complainant’s trademark is not sufficient to escape the finding that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel, therefore, finds that the disputed domain name is confusingly similar to the trademark in which the Complainant has rights.
B. Lack of rights or legitimate interests
The Respondent has not filed a Response and has neither provided any other information that would oppose the Complainant's allegations. Therefore, the Panel holds that the Complainant successfully presented its prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In particular, the Respondent is not in any way connected with the Complainant nor is it authorized to use the Complainant’s trademark for its commercial activities. In addition, the Respondent is not commonly known by the disputed domain name pursuant to Paragraph 4(c)(ii) of the Policy. Furthermore, it was demonstrated by evidence submitted by the Complainant that the disputed domain name has not been used for a bona fide offering of goods or services or a legitimate non-commercial or fair use.
The Panel, therefore, finds that the Respondent has no rights or legitimate interest in the disputed domain name.
C. Registration and use of the disputed domain name in bad faith
With respect to the bad faith argument, the Complainant states, in summary: (a) that the disputed domain is confusingly similar to the Complainant's well-known trademark; (b) that the Respondent had actual knowledge of the Complainant's rights in its trademarks; (c) that the disputed domain name resolve to an inactive page; and (d) that the disputed domain name was set up with MX records which suggests that it may be actively used for email purposes.
The Panel has already found that the disputed domain name is confusingly similar to the Complainant's trademark "BOURSORAMA". Although the Panel does not believe the Complainant submitted sufficient evidence that its trademark is indeed well-known, it does not change the overall finding that mere registration of a domain name that is confusingly similar to a trademark by an unaffiliated entity can lead to the presumption of bad faith, especially where the disputed domain name contains additional generic words that are highly common for the Complainant’s field.
In addition, the Panel believes that the Complainant submitted evidence that sufficiently demonstrates the Respondent must have (or should have) been aware of the existence of the Complainant, its trademark and its domain name.
With respect to the fact that the disputed domain name has not been put to any use, the Panel notes that the so-called passive holding of a domain name cannot prevent a finding of bad faith. In this present case the Complainant's trademark is distinctive, the Respondent failed to respond to the Complaint and there seems no plausible good faith use for the disputed domain name. Furthermore, the Complainant submitted evidence that the disputed domain name was set up with MX (mail exchange) records. Configuration of MX records for email purposes is indicative of potential fraudulent use of the disputed domain name, such as spam and phishing, and can lead to the finding of bad faith, as established by previous panels (eg. CAC Case No. 102380). In its own motion, the Panel has checked that the disputed domain name is blocked by various web browsers for being unsafe.
Consequently, the Panel finds that the disputed domain name has been registered and has been used by the Respondent in bad faith.
In conclusion, the Panel finds that all three elements required by Paragraph 4(a) of the Policy were met and makes the following decision.
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