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Européenne de Traitement de l’Information v. Horoshiy, Inc. [2004] GENDND 1505 (4 November 2004)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Européenne de Traitement de l’Information v. Horoshiy, Inc.

Case No. D2004-0706

1. The Parties

The Complainant is Européenne de Traitement de l’Information , Strasbourg Cedex, France, represented by Meyer & Partenaires, France.

The Respondent is Horoshiy, Inc., Curacao, Netherlands Antilles, Netherlands.

2. The Domain Name and Registrar

The disputed domain name <cibermut.com> is registered with NameKing.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 2, 2004. On September 3, 2004, the Center transmitted by email to NameKing.com a request for registrar verification in connection with the domain name at issue. On September 29, 2004 (after repeated reminders from the Center), NameKing.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 1, 2004. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 4, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was October 24, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 25, 2004.

The Center appointed Richard Hill as the sole panelist in this matter on November 1, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

Complainant owns various registered trademarks comprising the string “CYBERMUT”. It uses this mark, and domain names incorporating the mark, for certain online banking services.

Respondent is using the contested domain name for a website that offers various financial services.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is confusingly similar to its trademark, that the Respondent has no legitimate interests or rights in the contested domain name, and that the Respondent registered and is using the disputed domain name in bad faith by diverting consumers to a commercial website selling products and services in the field of banking and finance in order to intentionally attract Internet users to Respondent’s website and to profit by creating a likelihood of confusion with the CYBERMUT trademark.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

The panel will first address the procedural issues related to the fact that the Respondent has defaulted and then analyze the evidence to determine whether the complainant has proven, in accordance with paragraph 4(a) of the Policy that:

A. The contested domain name is identical or confusingly similar to a trademark in which the complainant has rights, and

B. The respondent has no rights or legitimates interests in the contested domain name, and

C. The respondent registered and used the contested domain name in bad faith.

I. The procedural issue related to the default of the Respondent

Since the Respondent has defaulted, this Panel must first determine what the procedural implications are of a default. Should the Complainant automatically prevail, or should the Panel anyway examine the evidence and base its decision on its determination of the relevant facts and laws?

While the Policy, Rules and the Supplemental Rules that govern these proceedings do not explicitly address this question, they do give some guidance. Notably, paragraph 4(a) of the Policy states:

“In the administrative proceeding, the complainant must prove that each of these three elements are present.” [emphasis added]

This Panel therefore holds that it cannot grant the Complainant’s request automatically, but that it must instead examine the evidence presented to determine whether or not the Complainant has proven its case as required by the Policy.

II. Analysis of the evidence in this case

A. Identical or Confusingly Similar

The Complainant has presented evidence that it owns the rights to the trademark CYBERMUT and it is obvious that the disputed domain name <cibermut.com> is identical to the trademark except for the substitution of “i” for “y” and the addition of “.com”. The difference is so small that confusion exists, in the sense of the Policy. As the Panel stated in VeriSign, Inc. v. Onlinemalls, WIPO Case No. D2000-1446, finding that <verasign.com> and <veresign.com> were confusingly similar to the mark VERISIGN:

“Respondent appears to have employed minor misspellings of Complainant’s mark to take bad faith advantage of spelling errors made by Internet users while attempting to enter Complainant’s Internet address on their web browsers.”

This Panel therefore finds that the Complainant has satisfied its burden of proof on this point and holds that the disputed domain name is confusingly similar to Complainant’s mark.

B. Rights or Legitimate Interests

The complainant has argued convincingly that the Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not challenged these arguments.

In accordance with 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s failure to reply. In this case, the Panel holds that the evidence and arguments presented by the Complainant are credible and should be accepted.

Therefore, this Panel holds that the Complainant has presented sufficient evidence to satisfy its burden of proof with respect to the issue of whether the respondent has rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The Complainant has presented evidence showing that the Respondent is using the disputed domain name for a website that provides financial services. Given Complainant’s Reputation in the finanacial services industry, such use clearly falls within the example of bad faith use and registration given in paragraph 4(b)(iv) of the Policy, which states:

“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 website or location or of a product or service on your website or location.”

Therefore, this Panel holds that the Complainant has presented sufficient evidence to satisfy its burden of proof with respect to bad faith registration and use.

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <cibermut.com> be transferred to the Complainant.

Richard Hill
Sole Panelist

Dated: November 4, 2004