Case number | CAC-UDRP-105916 |
---|---|
Time of filing | 2023-10-26 09:22:58 |
Domain names | sevicebforbank.com |
Case administrator
Organization | Iveta Špiclová (Czech Arbitration Court) (Case admin) |
---|
Complainant
Organization | BFORBANK |
---|
Complainant representative
Organization | NAMESHIELD S.A.S. |
---|
Respondent
Name | Tzvii Maron |
---|
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 has provided evidence of ownership of the following trademark: Trademark of the European Union BFORBANK n° 8335598 registered since June 2, 2009, duly renewed and covering goods and services in international classes 09, 35, 36 and 38.
The Complainant is a French company specialized in banking services. The Complainant has provided evidence of rights on the term BFORBANK. The Complainant also owns an important domain names portfolio, including the domain names. The disputed domain name was registered on 19 October, 2023 and resolves to an error page. MX records are configured on the disputed domain name.
COMPLAINANT
A. THE DISPUTED DOMAIN NAME IS IDENTICAL OR CONFUSINGLY SIMILAR TO A TRADEMARK OR SERVICE MARK IN WHICH THE COMPLAINANT HAS RIGHTS
The disputed domain name is confusingly similar to the Complainant’s trademark "BFORBANK". The addition of the term “sevice”, which is a misspelled version of “service” is not sufficient to escape the finding that the disputed domain name is confusingly similar to the trademark " BFORBANK” nor does it prevent the likelihood of confusion between the disputed domain name and the Complainant's trademark.
B. THE RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTERESTS IN RESPECT OF THE DISPUTED DOMAIN NAME
The Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not commonly known by the disputed domain name. Neither license nor authorization has been granted to the Respondent to make any use of the Complainant’s trademark BOFRBANK, or apply for registration of the disputed domain name. Lastly, the Complainant states it did not find any fair or non-commercial uses of the disputed domain name at stake.
C. THE DISPUTED DOMAIN NAME WAS REGISTERED AND IS USED IN BAD FAITH
The disputed domain name was registered and is used in bad faith. The Complainant submits that the Respondent registered and used the disputed domain name in full knowledge of the Complainant's trademark considering the Complainant’s trademark reputation. The Complainant states that the disputed domain name is not used in connection with any active website, but that MX records are linked to the domain name, which suggests that it may be actively used. Any e-mail emanating from the disputed domain name should not be seen as use of the domain name in good faith. On these bases, the Complainant concludes that the Respondent registered and is using the disputed domain name in bad faith.
RESPONDENT:
NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.
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.
Notwithstanding the fact that no Response has been filed, the Panel shall consider the issues present in the case based on the statements and documents submitted by the Complainant.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following elements:
(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.
A. Identical or Confusingly Similar
The Complainant must establish that it has a trademark or service mark and that the disputed domain name is identical or confusingly similar to that trademark or service mark to succeed. The Complainant is a French banking and financial services company. The Complainant has provided evidence of ownership of a trademark of the European Union in the term “BFORBANK” for more than 10 years. The disputed domain name is <sevicebforbank.com>.
As regards the question of identity or confusing similarity for the purpose of the Policy, it requires a comparison of the disputed domain name with the trademarks in which the Complainant holds rights. According to section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “this test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name”. Also, according to section 1.7 of the WIPO Overview 3.0, “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing”. The disputed domain name wholly incorporates the Complainant’s trademark "BFORBANK” in attack position, followed by the French term “service”, a misspelled version of the generic term “service”. This addition does not prevent a finding of confusing similarity with the Complainant’s trademarks. The fact that a domain name wholly incorporates the Complainant’s trademark is sufficient for this Panel to establish identity or confusing similarity for the purpose of the Policy, despite the addition of other words to such marks. It is well accepted by UDRP panels that a generic Top-Level Domain (“gTLD”), such as “.com”, is typically ignored when assessing whether a domain name is identical or confusingly similar to a trademark. This Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark and therefore finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
Under paragraph 4(c) of the Policy, any of the following circumstances, if found by the Panel, may demonstrate the Respondent’s rights or legitimate interests in the disputed domain name:
(i) before any notice to it 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 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 it has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate non-commercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy is summarized in section 2.1 of the WIPO Overview 3.0, which states: “[…] where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.” In the absence of rebuttal from the Respondent, the Panel finds that the Respondent is not commonly known by the disputed domain name. The Complainant has not at any time authorised or licensed the Respondent to use “BFORBANK” as a domain name, business or trading name, trade mark or in any other way. In addition, nothing in the record shows any bona fide offering of goods or services from the disputed domain name on the part on the Respondent before the submission of the Complaint. The Panel concludes that the Respondent has no right or legitimate interests in the disputed domain name and therefore finds that the requirement of paragraph 4(a)(ii) of the Policy is satisfied.
C. Registration and Use in Bad faith
For the purpose of Paragraph 4(a) (iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holders documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the holder has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder's website or other online 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 the holder's website or location.
The evidence on the record shows that the Respondent was certainly aware of the existence of the Complainant and of the rights of the Complainant. This is particularly evidenced by the fact that the Respondent is located in France, where the Complainant and its trademark are extremely well-known to the general population. The addition of the misspelled term French term “sevice” also demonstrates the knowledge of the Complainant by the Respondent, as it is extremely common for users to seek customer services’ help in the banking sector. Although the disputed domain name is not actively used in connection to a website, the Panel notes that it is linked to MX records allowing the sending and reception of e-mails. The MX records drawn to the attention of the Panel are those of an external provider to the Registrar: this strongly evidences the fact that the Respondent knowingly and willingly linked the disputed domain name to an e-mail hosting service. As seeking customer services’ help in the banking sector is ordinary, unfortunately so are phishing and fraud attempts.
The Panel concludes that the Respondent purposedly registered the disputed domain name in an attempt to defraud the Complainant’s consumers, thereby disrupting the Complainant’s business.
In light of all the elements above, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith, and finds that the requirement of paragraph 4(a)(iii) of the Policy is satisfied.
- sevicebforbank.com: Transferred
PANELLISTS
Name | Arthur Fouré |
---|