Case number | CAC-UDRP-105982 |
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Time of filing | 2023-11-16 09:30:04 |
Domain names | boursbank.online |
Case administrator
Name | Olga Dvořáková (Case admin) |
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Complainant
Organization | BOURSORAMA |
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Complainant representative
Organization | NAMESHIELD S.A.S. |
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Respondent
Name | Marine Dumont |
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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 owner of the BOURSO® trademark registered on February 22nd, 2000.
In addition, the Complainant owns a number of domain names, including <boursorama.com>, registered since March 1st, 1998, <bourso.com>, registered since January 11th, 2000, and <boursobank.com> registered since November 23rd, 2005.
The Complainant in this proceeding is BOURSORAMA, a financial products service provider. In France, BOURSORAMA is a popular online bank with over 5.4 million customers. The portal www.boursorama.com is the first French online banking platform.
The disputed domain name <boursbank.online> was registered on November 8th, 2023.
The Complainant contends that the requirements of the Policy have been met and that the disputed domain name should be transferred to it.
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.
1. The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The disputed domain incorporates a misspelled version of the Complainant's trademark BOURSO®, where the final letter “o” has been removed, followed by the relevant term “bank”, which directly refers to the Complainant’s business and lead to consumer confusion. Previous UDRP Panels have consistently stated in this regard that “minor alterations cannot prevent a finding of confusing similarity between the trademark and the domain name” (See LinkedIn Corporation v. Daphne Reynolds, WIPO Case No. D2015-1679). gTLDs are commonly viewed as a standard registration requirement, and as such they are disregarded under the first element confusing similarity test (WIPO Overview 3.0, section 1.11).
The Panel therefore concludes that the disputed domain name is confusingly similar to a trademark in which the Complainants have rights within the meaning of paragraph 4(a)(i) of the Policy.
- The Respondent has no rights or legitimate interests in respect of the disputed domain name.
Although the Respondent did not file an administratively compliant (or any) response, the Complainant is still required to make out a prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the Respondent fails to do so, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Complainant in the present case has not licensed or authorized the Respondent to register or use its trademark or the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name or owns any corresponding registered trademarks. The organization of the Respondent, “Marine Dumont”, or its address, also has no connection with the Complainant´s brand. The Complainant did not grant any license or authorization to the Respondent to register or use the disputed domain name, nor the use of the Complainant´s trademark on pages of the disputed websites.
On the basis of preponderance of evidence, and in the absence of any evidence to the contrary or any administratively compliant response being put forward by the Respondent, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name within the meaning of paragraph 4(a)(ii) of the Policy.
- The disputed domain name has been registered and is being used in bad faith.
The use and registration of the disputed domain name by the Respondent has been done in bad faith.
First of all, the registration of the disputed domain name by the Respondent was done in bad faith. UDRP panels have consistently held that the mere registration of a domain name that is confusingly similar to a famous trademark by an unaffiliated entity can by itself create a presumption of bad faith. With the reputation of the BOURSORAMA trademark in France, the presumption arises that the disputed domain name was registered with the intention to attract Internet users by creating a likelihood of confusion with the well-known BOURSORAMA trademark. The fact that the Complainant’s trademark is a well-known one in France and that the Respondent has failed in presenting a credible evidence-backed rationale for registering the disputed domain name imply that the Respondent may have had knowledge of the Complainant’s trademark at the time of registration of the disputed domain name. Even assuming that the Respondent was not aware of the presence of the BOURSORAMA trademark prior to registration, a simple search in an online trademark register or in Google search engines would have informed the Respondent on the existence of the Complainant and its rights in the BOURSORAMA mark. It is reasonable to infer that the registrant registered the disputed domain name with the knowledge of the Complainant’s trademark and/or brand influence.
Secondly, the use of the disputed domain name was in bad faith. The Complainant notes that it does not resolve, and it did not resolve to an active website in the past. However, pursuant to section 3.3 of the WIPO Overview 3.0, the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding if certain circumstances are met. “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 name may be put.” As the Complainant has rightly pointed out having regard to structure of the domain name in the way confusingly similar to the Complainant’s trademark and without providing additional evidence to prove any potentially legitimate use, it is impossible to think of any good faith use to which the domain name could be put by the Respondent.
At the same time, as the Complainant stated, disputed domain name has been set up with MX records, which significantly heightens the risk of phishing, as email recipients could easily be misled into thinking that emails originate from the Complainant once the Respondent starts sending emails from an address associated with the disputed domain name. Therefore, the Respondent could have registered the disputed domain names to divert internet users to its own websites. According to paragraph 4(b)(iv) of the Policy, “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location”, if found by the Panel, shall be considered evidence of registration and use of the disputed domain name in bad faith.
Therefore, in the absence of any evidence to the contrary (or any administratively compliant response) being put forward by the Respondent, the Panel determines that the Complainant provided a prima facie evidence that the disputed domain name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
- boursbank.online: Transferred
PANELLISTS
Name | Carrie Shang |
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