Case number | CAC-UDRP-105068 |
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Time of filing | 2022-12-20 08:48:08 |
Domain names | bourso-acceuil.com |
Case administrator
Organization | Iveta Špiclová (Czech Arbitration Court) (Case admin) |
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Complainant
Organization | BOURSORAMA SA |
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Complainant representative
Organization | NAMESHIELD S.A.S. |
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Respondent
Name | Ameli Fabrice |
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The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.
The Complainant is the holder of the French word mark BOURSO registered under No. 3009973 since February 22, 2000, covering goods and services in classes 9, 35, 36, 38, 41 and 42.
The Complainant, Boursorama S.A., is a French company and operator of a leading online information portal providing stock market, political and general financial information since 1995. The Complainant is also a provider of online banking and brokerage services.
The Complainant is the owner of the registered French word mark BOURSO in several classes since 2000, and also owns domain names such as <boursorama.com> and <bourso.com>.
The disputed domain name <bourso-acceuil.com> has been registered on December 12, 2022. According to the Complainant’s evidence, the disputed domain name resolved to a parking page. The Panel observes that the disputed domain name currently appears to be inactive.
COMPLAINANT:
The Complainant considers the disputed domain name to be confusingly similar to a trademark in which it has rights. The Complainant claims that the Respondent has no rights or legitimate interests in respect of the disputed domain name. According to the Complainant, the Respondent is not commonly known by the disputed domain name, is not affiliated with the Complainant and has not been authorized to register or use the disputed domain name or the Complainant’s mark. The Complainant claims that the absence of any use of the disputed domain name demonstrates a lack of legitimate interests in the disputed domain name. Finally, the Complainant considers that the disputed domain name was registered and is being used in bad faith. The Complainant contends that the Respondent knew of the existence of the Complainant’s trademark when registering the disputed domain name, and could not ignore the Complainant. The Complainant further claims that it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law.
RESPONDENT:
The Respondent did not reply to the Complainant’s contentions.
The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).
The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).
The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).
The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.
Paragraph 15 of the Rules provides that the Panel is to decide the complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in Paragraph 4 (a) of the Policy have been established before any order can be made to transfer a domain name. As the proceedings are administrative, the standard of proof is the balance of probabilities.
Thus, for the Complainant to succeed it must prove, within the meaning of Paragraph 4(a) of the Policy and on the balance of probabilities that:
- The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
- The Respondent has no rights or legitimate interests in respect of the domain name; and
- The domain name has been registered and is being used in bad faith.
The Panel has therefore dealt with each of these requirements in turn.
- Identity of confusing similarity
The Complainant must first establish that there is a trademark or service mark in which it has rights. Since the Complainant is the holder of the registered BOURSO trademark, which is used in connection with the Complainant’s financial information and online banking business, it is established that there is a trademark in which the Complainant has rights.
The disputed domain name <bourso-acceuil.com> incorporates the Complainant’s BOURSO trademark in its entirety, merely adding a hyphen and the term “acceuil”. This term appears to be a misspelling of the French word “accueil”. In the Panel’s view, these additions do not prevent the Complainant’s trademark from being recognizable within the disputed domain name (see section 1.8 WIPO Overview 3.0; IM PRODUCTION v. Xue Han, CAC Case No. 104877 <isabel-marantus.com>).
Additionally, it is well established that the Top Level Domains (“TLDs”) such as “.com” may be disregarded when considering whether the disputed domain name is identical or confusingly similar to the trademark in which the Complainant has rights (see section 1.11 WIPO Overview 3.0).
Therefore, the Panel finds that the disputed domain name <bourso-acceuil.com> is confusingly similar to the Complainant’s trademark. Accordingly, the Complainant have made out the first of the three elements that they must establish.
- No rights or legitimate interests
Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
It is established case law that it is sufficient for the Complainant to make a prima facie showing that the Respondent has no right or legitimate interest in the disputed domain name in order to shift the burden of proof to the Respondent (see section 2.1 WIPO Overview 3.0 and Champion Innovations, Ltd. V. Udo Dussling (45FHH), WIPO case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO case No. 2004-0110).
The Panel notes that the Respondent has not been commonly known by the disputed domain name and that the Respondent has not acquired trademark or service mark rights. The Whois records relating to the disputed domain name indicate that the Respondent is known as “Ameli Fabrice”. The Respondent’s use and registration of the disputed domain name was not authorized by the Complainant. There are no indications that a connection between the Complainant and the Respondent existed.
Fundamentally, a respondent’s use of a domain name will not be considered “fair” if it falsely suggests affiliation with the trademark owner. The correlation between a domain name and the complainant’s mark is often central to this inquiry. Generally speaking, UDRP panels have found that where a domain name consists of a trademark plus an additional term, such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner (see section 2.5.1 WIPO Overview 3.0). The disputed domain name incorporates the Complainant’s BOURSO trademark in its entirety, merely adding a hyphen and a misspelling of the descriptive French term “accueil”, which can refer to the reception of a hotel or office building. In the Panel’s view, this combination may increase the risk of confusion with the Complainant as it may refer to some kind of (online) reception or homepage of ta website of the Complainant. Therefore, the Panel finds that the disputed domain name carries a risk of implied affiliation with the Complainant and cannot constitute fair use.
Moreover, the Panel observes that the disputed domain name appears to be inactive, and neither the Respondent nor the facts of the case indicate any demonstrable preparations to a good faith use of the disputed domain name. The passive holding or non-use of domain names is, in appropriate circumstances, evidence of a lack of rights or legitimate interests in the domain names (see Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz, WIPO Case No. D2011-2209; Facebook, Inc. v. Mirza Azim, WIPO Case No. D2016-0950; American Home Products Corporation v. Ben Malgioglio, WIPOCase No. D2000-1602; and Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, WIPO Case No. D2000-1244).
The Respondent had the opportunity to demonstrate its rights or legitimate interests but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted.
Therefore, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name. In light of the above, the Complainant succeeds on the second element of the Policy.
- Bad faith
Complainant must prove on the balance of probabilities that the disputed domain name was registered in bad faith and that it is being used in bad faith (see section 4.2 WIPO Overview 3.0 and e.g. Telstra Corporation Limited v. Nuclear Marshmallow, WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd, WIPO Case No. D2006-1052).
According to the Panel, the awareness of a respondent of the complainant and/or the complainant’s trademark rights at the time of registration can evidence bad faith (see Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz, WIPO Case No. D2011-2209; Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org., and Pokemon Fans Unite, WIPO Case No. D2001-1070).
In the instant case, the Panel finds that the Respondent must have had knowledge of the Complainant’s rights in the BOURSO trademark at the moment it registered the disputed domain name, since the disputed domain name incorporates the Complainant’s distinctive BOURSO trademark in its entirety and only adds a (misspelling of a) generic word. Moreover, the Complainant’s mark has been registered more than 20 years before the disputed domain name in the country where the Respondent is located. Finally, the reputation of the Complainant’s BOURSO trademark has been confirmed by at least one previous UDRP panel (Boursorama SA c. David Tidast, WIPO Case No. D2020-2547).
The Panel observes that the Respondent is not presently using the disputed domain name. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain names may be put (see section 3.3 WIPO Overview 3.0).
In the present case, the Panel is of the opinion that several of the above factors apply:
- the Panel finds that the Complainant’s BOURSO trademark is distinctive and enjoys at least some kind of reputation in France, where the Respondent is located;
- the Respondent did not submit any response or provided any evidence of actual or contemplated good-faith use;
- given the confusing similarity with the Complainant’s mark and the combination with (the misspelling of) the generic term “accueil”, the Panel finds it difficult to conceive any plausible legitimate future use of the disputed domain name by the Respondent.
Finally, the Respondent did not formally take part in the administrative proceedings. According to the Panel, this serves as an additional indication of the Respondent’s bad faith.
Therefore, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the disputed domain name was registered and is being used in bad faith.
- bourso-acceuil.com: Transferred
PANELLISTS
Name | Flip Petillion |
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