GECINA v. VYBES GOD / MedAdvisor
Claim Number: FA2111001971512
Complainant is GECINA (“Complainant”), represented by Yaël COHEN-HADRIA of ERNST & YOUNG Société d’avocats, France. Respondent is VYBES GOD / MedAdvisor (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gecina.us>, registered with NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 2, 2021; the Forum received payment on November 2, 2021.
On November 2, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <gecina.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On November 3, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@gecina.us. Also on November 3, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 29, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a company that owns, manages and develops real estate assets of 20 billion euros, mostly in the Paris region. Complainant has rights in the GECINA mark through its registrations with the French Intellectual Property Office and the European Union Intellectual Property Office (“EUIPO”) (e.g. French National Institute of Industrial Property (“NIIP”), the earliest of which is dated to 2019. It also owns the domain names <gecina.fr> and <gecina.com> which were registered in 1999 and 2002, respectively. Respondent’s <gecina.us> domain name, registered on September 21, 2021, is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the “.us” country-code top-level domain (“ccTLD”).
Respondent lacks rights and legitimate interests in the <gecina.us> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its GECINA mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but but instead impersonates Complainant in fraudulent messages to applicants seeking employment with Complainant.
Respondent registered and uses the <gecina.us> domain name in bad faith. Respondent passes itself off as Complainant in messages as part of a fraudulent scheme and the disputed domain name resolves a website featureing only monetized links to other companies.
B. Respondent
Respondent failed to submit a Response in this proceeding.
i. Complainant owns rights to the GECINA trademark and the <gecina.us> domain name is identical or confusingly similar thereto;
ii. Use of the disputed domain name in connection with a job application scam is not a bona fide offering of goods or services and there is no other indication that Respondent has any rights or legitimate interests in the disputed domain name; and
iii. Respondent had prior knowledge of Complainant’s mark and it registered and uses the disputed domain name in bad faith where it impersonates Complainant in furtherance of a job application scam.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations and submissions pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable and supported allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the GECINA mark through its registrations with the French Intellectual Property Office and the European Union Intellectual Property Office (“EUIPO”) (e.g. French National Institute of Industrial Property (“NIIP”). Registration with multiple trademark agencies is sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. shen chaoyong, FA 1520804 (Forum Oct. 23, 2013) (finding that Complainant owns interests in the mark where it registered its mark with various national trademark authorities, including the NIIP and the USPTO). Therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <gecina.us> domain name is identical or confusingly similar to Complainant’s GECINA mark. Under Policy ¶ 4(a)(i), adding the “.us” ccTLD is generally insufficient to differentiate a disputed domain name from the mark it incorporates. See Tropar Mfg. Co. v. TSB, FA 127701 (Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark). The disputed domain name incorporates Complainant’s GECINA mark in its entirety and adds the “.us” ccTLD. Therefore, the Panel finds that Respondent’s domain name is identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent is not commonly known by the <gecina.us> domain name, nor has Complainant authorized or licensed Respondent to use its GECINA mark in the disputed domain name. Under Policy ¶ 4(c)(iii), relevant WHOIS information may be reviewed when considering whether a Respondent is commonly known by a disputed domain name. Further, a lack of evidence establishing this may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. See Radio Flyer Inc. v. er nong wu, FA 1919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”) The WHOIS record for the <gecina.us> domain name identifies Respondent as “VYBES GOD”, with a company name of “MedAdvisor”, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its GECINA mark in the disputed domain name. Respondent has filed no Response nor has it made any other submission in this case and so the Panel finds no evidence that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii).
The Panel further finds nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel concludes that Respondent does not meet the criteria of Policy ¶ 4(c)(i).
Next, Complainant argues that Respondent does not use the <gecina.us> domain name for any bona fide offering of goods or services, nor does it make a legitimate noncommercial or fair use thereof. Under Policy ¶¶ 4(c)(ii) and (iv), using a disputed domain name to impersonate a Complainant in pursuit of a fraudulent job application scheme, while the disputed domain name’s resolving website displays only pay-per-click links is not considered a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use. See Conduent, Inc. v. Nayeem Akbar, FA 1870846 (Forum Dec. 6, 2020) (no bona fide use found where “Respondent also falsely represents that the visitor has been accepted for employment with Complainant and solicits personal identifying information.”); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA 1613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant provides screenshots of an alleged direct message exchange between an agent operating the disputed domain name and a potential job applicant in which the agent seeks to interview the applicant and also explains that “you will be needed the complete office equipment to setup a mini office at home, and the company will be making full provisions of the necessary working materials you would be needed, no out of pocket cost from you!.” It also provides an image of the disputed domain name’s resolving website which features no content but pay-per-click links. From this evidence it is apparent to the Panel that Respondent is pursuing a scam by which it seeks to trick potential victims into paying for certain office equipment, which likely does not exist, in furtherance of a job with Complainant which most apparently does not exist. As Complainant has made out a prima facie case which has not been rebutted by Respondent, the Panel finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor does it make any legitimate noncommercial or fair use thereof under Policy ¶¶ 4(c)(ii) and (iv).
Complainant asserts that Respondent had actual notice of Complainant’s rights in the GECINA mark as evidenced by Respondent’s impersonation of Complainant in a job application scam. Prior decisions have considered the use made of a domain name in determining whether a respondent had actual notice of the complainant’s rights in the mark at the time a disputed domain name was registered. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”) Here, Respondent attempts to pass itself off as Complainant as evidenced by the screenshots of an online conversation between Respondent and a job applicant. Respondent makes statements such as “I am the hiring manager” and “I am Mr, Conde Julien 47 years old and the online interview-manager to ‘Gecina’.” The Panel finds that this activity indicates that Respondent had actual knowledge of Complainant’s rights in the GECINA mark at the time it registered the <gecina.us> domain name.
The Complaint also states that “a simple search on the existing domain names must be done before the registration of a domain name, which is well known since it is specified in Article 2 of the usTLD Dispute Resolution Policy.” The Panel feels obliged to point out that this is not accurate. Art. 2 of the Policy states, in part, that “you hereby represent and warrant to us that … to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party”. It goes on to say that “It is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights.” There has been extensive writing on the meaning of Art. 2 of the UDRP, which is very similar to the usDRP, but the Panel will not expound on that here. Suffice to say that the Policy does not require that “a simple search on the existing domain names must be done before the registration of a domain name” as claimed by Complainant.
Complainant further argues that Respondent registered and/or uses the <gecina.us> domain name in bad faith by impersonating Complainant and pursuing a job application scam. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to pass oneself off as a complainant in fraudulent messages, while holding the disputed domain name’s resolving website for no purpose but parked, pay-per-click links may be considered evidence of bad faith disruption for commercial gain. See Société des Produits Nestlé S.A. v. Registration Private, Domains By Proxy, LLC / James Onuoha Doe, D2019-1962 (WIPO Oct. 7, 2019) (bad faith found where “[t]he fraudulent ‘job application’ document and email messages created by Respondent incorporate the Domain Name and false contact information implying association with Complainant. It is apparent that Respondent has attempted to impersonate Complainant and mislead Internet users by claiming association with Complainant to obtain applicants’ personal data.”); see also Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display links such as ‘Electrical Stimulation’ and ‘Physical Therapy Software.’ Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”). As noted above, Complainant submits screenshots of messages allegedly made by a person impersonating Complainant with the disputed domain name and engaging a potential victim in an interview as part of a job application scam designed to have the victim pay for certain work-related equipment. Also submitted is a screenshot of the disputed domain name’s resolving website which features only parked, pay-per-click links. Respondent has not participated in this case to rebut Complainant’s assertions or provide an alternate explanation for its actions. Therefore, the Panel finds ample evidence that Respondent registered and uses the disputed domain name for bad faith disruption and for commercial gain based on a likelihood of confusion under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gecina.us> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: December 2, 2021
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