NATIONAL ARBITRATION FORUM
URS DEFAULT DETERMINATION


BANQUE PRIVEE EUROPEENNE SA v. WhoisGuard, Inc. et al.
Claim Number: FA1408001575856


DOMAIN NAME

<bpe.email>


PARTIES


   Complainant: BANQUE PRIVEE EUROPEENNE SA of PARIS, France
  
Complainant Representative: Nameshield Laurent Becker of Angers, France

   Respondent: WhoisGuard, Inc. WhoisGuard Protected of Panama, II, PA
  

REGISTRIES and REGISTRARS


   Registries: Spring Madison, LLC
   Registrars: Enom

EXAMINER


   The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
   Mr. Tomáš Abelovský, as Examiner

PROCEDURAL HISTORY


   Complainant Submitted: August 20, 2014
   Commencement: August 20, 2014
   Default Date: September 4, 2014
   Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT


   Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW


   Clear and convincing evidence.

FINDINGS and DISCUSSION



   Findings of Fact: Complainant has provided the following explanatory text, in toto, in its Complaint (subject to the 500-word limit specified in paragraph 1.2.7 of the URS Procedure): “A. The domain name(s) is(are) identical or confusingly similar to a trademark or service mark in which the Complainant has rights: BANQUE PRIVEE EUROPEENNE SA (« BPE ») is a heritage bank offering a comprehensive range of banking services to a demanding consumers and professionals. The domain name is identical to the French trademark "BPE" N° 3096615, registered on April 23th, 2001. The distinctive trademark "BPE" is also registered in TMCH clearinghouse. New GTLD "EMAIL" associated with the trademark "BPE" refers to the communication offered by the Complainant to his customers. B. Registrant has no legitimate right or interest to the domain name: The Registrant has no rights or legitimate interests in respect of the domain name and he is not related in any way to the Complainant’s business. The Complainant does not carry out any activity for, nor has any business with the respondent. The domain name has been registered with Whois Privacy Services « WhoisGuard, Inc. ». The domain name is used only to display commercial links in relation to the Complainant and his competitors. By this use, the Respondent generates online revenues. C. The domain name(s) was/were registered and is/are being used in bad faith: The Complainant contends that the Respondent registered the disputed domain name and is using the domain name for the operation of a click-through website which provide commercial links related to the Complainant and his competitors. The Respondent is thereby deliberately trading on the goodwill of the Complainant, by attracting internet users and diverting internet traffic intended for the Complainant to the Respondent’s website for the purpose of monetary gain. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on­line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.” Respondent has not provided any response.

  

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.


[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant 


Complainant demonstrated that he is a commercial bank offering services and seated in Paris, France. Complainant also holds the French trademark "BPE" N° 3096615, registered on April 23th, 2001. This trademark is also registered in the Trademark Clearing House. Respondent has not proven otherwise.


[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant 


Complainant demonstrated that Respondent has no legitimate right or interest to the domain name <bpe.email>. Respondent has registered the domain name without any authorization from Complainant who is the legitimate holder of the trademark. Respondent has no affiliation with the Complainant. The website under the domain name <bpe.email> is used only to display commercial advertisement links in relation to the Complainant and his competitors. Respondent has not proven otherwise.


[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the 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 documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s 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 Registrant’s web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant 


Respondent has registered and used the domain name <bpe.email> in bad faith and Complainant has thus satisfied paragraph 1.2.6.3 of the URS Procedure. That is so for the following reasons. Respondent misuses the confusing similarity of the disputed domain name to attract Internet users who are presumably looking for official sites of Complainant. Respondent likely profits when such Internet users click through the commercial links displayed at the disputed domain. Complainant has registered his trademark "BPE" in 2001 and proven that he is using this trademark until now. Accordingly, Respondent must have known of this word mark because he operates under the domain name a click-through website which provides commercial links related to the Complainant and his competitors. Moreover, the domain name has been registered with Whois Privacy Services (WhoisGuard, Inc.). Although use of privacy or proxy registration service is not in and of itself an indication of bad faith, the manner in which such service is used can in certain circumstances constitute a factor indicating bad faith. Given the above mentioned evidences, the use of a proxy registration service to avoid disclosing the name of the real party is also consistent with an inference of bad faith in registering and using the domain name. Respondent has not proven otherwise.


FINDING OF ABUSE or MATERIAL FALSEHOOD


The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:


  1. The Complaint was neither abusive nor contained material falsehoods. 

DETERMINATION


After reviewing the parties’ submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

  1. bpe.email

 

Mr. Tomáš Abelovský
Examiner
Dated: September 9, 2014

 

 

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