Decision for dispute CAC-UDRP-108775

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 a number of trademark registrations for BOUYGUES CONSTRUCTION (the “BOUYGUES CONSTRUCTION trademark”), including the following representative registrations:

− the International trademark BOUYGUES CONSTRUCTION with registration No. 732339, registered on April 13, 2000 for services in International Class 37; and

− the European Union trademark BOUYGUES CONSTRUCTION with registration No. 001589159, registered on May 16, 2001 for services in International Class 37.

The Complainant was established in 1952. It is a diversified group of industrial companies centered on four sectors of activity: Construction, Energies and Services, Media and Telecoms, and operating in over 80 countries. The Complainant’s group net profit amounted to EUR 1,138 million.

The Complainant’s subsidiary BOUYGUES CONSTRUCTION is a world player in the fields of building, public works, energy, and services. Its website is located at the domain name <bouygues-construction.com>, registered on May 10, 1999.

The disputed domain name <bouygues-constrcution.com> was registered on June 19, 2026 and resolves to an error page.

The Complainant contends that the disputed domain name is confusingly similar to its BOUYGUES CONSTRUCTION trademark, as it represents an obvious misspelling of this trademark through the inversion of the letters “u” and “c”, which is characteristic of a typosquatting practice intended to create confusing similarity between a trademark and a domain name.

COMPLAINANT:

According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, because it is not commonly known by the disputed domain name, is not affiliated with the Complainant and has not been authorised by it to use the Complainant’s trademark or to register the disputed domain name.

The Complainant points out that the disputed domain name is a typosquatted version of the BOUYGUES CONSTRUCTION trademark, which shows an attempt to take advantage of Internet users’ typographical errors, and resolves to an error page, which shows the lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.

The Complainant contends that the disputed domain name was registered and is being used in bad faith. It submits that its BOUYGUES CONSTRUCTION trademark is well-known, and given its distinctiveness, it is reasonable to infer that the Respondent has registered the disputed domain name with knowledge of it. According to the Complainant, the fact that it represents a misspelling of the BOUYGUES CONSTRUCTION trademark shows that the disputed domain name was intentionally designed to be confusingly similar to the Complainant’s trademark. 

The Complainant notes that the disputed domain name resolves to an error page. According to it, it is impossible to conceive of any plausible actual or contemplated active use of the disputed 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 submit a Response in this proceeding.

The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to the BOUYGUES CONSTRUCTION trademark 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.

Pursuant to the Policy, paragraph 4(a), a complainant must prove each of the following to justify the transfer of a domain name:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;

(ii) the respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the disputed domain name was registered and is being used in bad faith. 

Identical or confusingly similar 

The Complainant has provided evidence and has thus established its rights in the BOUYGUES CONSTRUCTION trademark. 

The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the general Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). The Panel sees no reason not to follow the same approach here, so it will disregard the “.com” gTLD section of the disputed domain name.

The relevant part of the disputed domain name is therefore the sequence “bouygues-constrcution”, which is almost identical to the BOUYGUES CONSTRUCTION trademark, and the only difference between them is that the “constrcution” is a misspelling of “construction”, which has a low effect on the overall impression made by the disputed domain name, where the Complainant’s trademark is easily recognisable. 

As discussed in section 1.9 of the WIPO Overview of WIPO Panel Views on Select UDRP Questions (“WIPO Overview 3.1”), a domain name that consists of a variation of a trademark (typically a common, obvious, or intentional misspelling, referred to as typosquatting) is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. This stems from the fact that the domain name contains sufficiently recognisable aspects of the relevant mark. Under the second and third elements, panels will normally find that employing a misspelling in this way signals an intention on the part of the respondent (typically corroborated by infringing website content) to confuse users seeking or expecting the complainant.

Taking all the above into account, the Panel finds that the disputed domain name is confusingly similar to the BOUYGUES CONSTRUCTION trademark in which the Complainant has rights. 

Rights and legitimate interests 

Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognised that proving that a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, 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. Section 2.1 of the WIPO Overview 3.1.

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, because it was not authorised to use the BOUYGUES CONSTRUCTION trademark and is not commonly known under the disputed domain name, which is a misspelled version of the same trademark. The Complainant also points out that the disputed domain name is inactive, which shows that the Respondent is not using it for any bona fide activities. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.

The Respondent has not submitted a Response and has not provided an explanation of the reasons why it has registered the disputed domain name and how it plans to use it. It has not disputed any of the Complainant’s allegations or evidence.

In the Panel’s view, the circumstances of this case do not support a finding that the Respondent has rights and legitimate interests in the disputed domain name. It is a misspelled version of the BOUYGUES CONSTRUCTION trademark and of the Complainant's domain name <bouygues-construction.com>, which creates an appearance that the disputed domain name is related to the Complainant and its activities in the construction industry.

In the absence of any arguments or evidence to the contrary, this leads the Panel to the conclusion that it is more likely than not that the Respondent, being aware of the goodwill of the Complainant’s BOUYGUES CONSTRUCTION trademark, has registered the disputed domain name targeting this trademark in an attempt to exploit its goodwill by attracting Internet users who may believe that the disputed domain name and the website to which it redirects are somehow related to the Complainant. 

Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.

Bad faith

The Respondent is not using the disputed domain name for a website. As noted in section 3.3 of the WIPO Overview 3.1, from the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not by itself prevent a finding of bad faith under the doctrine of passive holding. To the contrary, in looking at the totality of circumstances in each case, panelists have found that the registration and non-use of a domain name can still constitute bad faith for purposes of the Policy.

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 taking active steps to conceal its identity or (iv) the use of false or inaccurate contact details (noted to be in breach of the respondent’s registration agreement). Taking the above factors into consideration, panels assess the overall plausibility of any (claimed) good faith use to which the domain name may be put in light of the composition of the domain name in relation to the relevant mark, such that, the more arbitrary or distinctive a mark the less plausible a claimed non-infringing good faith use is likely to be, and vice versa.

The distinctive BOUYGUES CONSTRUCTION trademark was registered twenty-five years before the disputed domain name and has been extensively used around the world. The disputed domain name is an obvious misspelling of the BOUYGUES CONSTRUCTION trademark and of the Complainant's domain name <bouygues-construction.com>, which makes it appear as an official online location of the Complainant for its construction business. This may confuse and attract Internet users, and the Respondent has not provided any plausible explanation of its choice of a domain name and its plans how to use it.

Considering the above, the Panel is not aware of any good faith use to which the disputed domain name may be put without the consent of the Complainant, and accepts that the Respondent has registered the disputed domain name targeting the Complainant’s BOUYGUES CONSTRUCTION trademark and with the intention of taking an unfair advantage of its goodwill, which supports a finding of bad faith under the doctrine of passive holding.

This satisfies the Panel that the disputed domain name has been registered and used in bad faith.