ATLAND v. etienne hanrot
Claim Number: FA2205001996064
Complainant is ATLAND (“Complainant”), represented by Emmanuel BOUTTIER, France. Respondent is etienne hanrot (“Respondent”), Israel.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fonciere-atland.com>[i], registered with GoDaddy.
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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to the Forum electronically on May 12, 2022; the Forum received payment on May 12, 2022.
On May 13, 2022, GoDaddy confirmed by e-mail to the Forum that the <fonciere-atland.com> domain name (the Domain Name) is registered with GoDaddy and that Respondent is the current registrant of the name. GoDaddy has verified that Respondent is bound by the GoDaddy registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 18, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of June 7, 2022 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@fonciere-atland.com. Also on May 18, 2022, 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 June 13, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a French real-estate investment company. It has rights in the ATLAND FONCIÈRE mark through its registration of that mark with the French National Institute of Industrial Property (“INPI”). The <fonciere-atland.com> Domain Name is confusingly similar to Complainant’s mark, as it wholly incorporates Complainant’s mark, differing only through an inversion of the individual words which comprise the ATLAND FONCIÈRE mark, with the addition of the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name, and Complainant has not authorized Respondent to use its ATLAND FONCIÈRE mark. Additionally, Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead uses it to pass off as Complainant, to defraud consumers, and for a phishing scheme.
Respondent registered and uses the Domain Name in bad faith, to pass off as Complainant, to defraud consumers, and for a phishing scheme.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a Response, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The ATLAND FONCIÈRE mark was registered to Complainant with the INPI (Reg. No. 4,446,878) on April 17, 2018 (INPI registration certificate included in Complaint Exhibit A). Complainant’s registration of its mark with a governmental trademark agency such as the INPI establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i). BALENCIAGA SA v. Song LiHong, FA 1797466 (Forum Aug. 22, 2018) (“[T]he Panel holds that Complainant’s registration of the BALENCIAGA mark with the NIIP and/or SAIC is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).”).
Respondent’s <fonciere-atland.com> domain name is confusingly similar to Complainant’s ATLAND FONCIÈRE mark. It incorporates both elements of Complainant’s mark verbatim, merely reversing their order, adding a hyphen between them, and adding the “.com” gTLD. These changes do not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Google LLC v. Hai Min Xu / Xu Hai Min / haimin xu, FA 1779597 (Forum May 3, 2018) (finding the <opensourcegoogle.com> domain name to be confusingly similar to the GOOGLE OPEN SOURCE mark, as the domain name consists of the mark with the terms transposed), Morgan Stanley v. nashan, FA 1706094 (Forum Jan. 23, 2017) (finding the <morgan-stanley.xyz> domain name identical to complainant’s MORGAN STANLEY mark, because “the use of a hyphen and addition of a gTLD are irrelevant in determining the identical or confusingly similar nature of a disputed domain name under Policy ¶ 4(a)(i).”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the ATLAND FONCIÈRE mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) Respondent is not commonly known by the Domain Name, (ii) Complainant has not authorized Respondent to use its ATLAND FONCIÈRE mark, and (iii) Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead uses it to pass off as Complainant, to defraud consumers, and for a phishing scheme. These allegations are addressed as follows:
The information furnished to the Forum by the registrar lists “etienne hanrot” as the registrant of the Domain Name. This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no Response has been filed UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that the Respondent has not been commonly known by the Domain Name.
Complainant states that Respondent is not affiliated or associated with it and that it has never authorized or permitted Respondent to use its mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
Complaint Exhibits F and G appear to be two emails from different persons using the email address [name of person]@fonciere-atland.com promoting and offering the real estate investment services of “Atland Foncière.” These emails use exactly the same name and logo, printed with exactly the same font and coloring, as that used by Complainant in its advertising materials, copies of which are submitted as Complaint Exhibit C. These emails, from addresses based upon the Domain Name, pass off as and compete with Complainant. Using a domain name to for these purposes is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iv).[ii] Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“Passing off as a complainant through e-mails is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii).”), Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”), Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name).
The emails also solicit personal and private information, such as copies of identity documents such as passport, from any recipient who might be interested in investing with the operator of the website. This qualifies as phishing, which is a fraudulent attempt to obtain sensitive information such as usernames, passwords and credit card details by disguising oneself as a trustworthy entity in an electronic communication, and is evidence of a lack of rights or legitimate interest in the Domain Name. DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’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 the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, by using the Domain Name to pass off as Complainant and purport to offer Complainant’s services, Respondent is using the Domain Name to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its web site by Complainant. The evidence does not establish whether Respondent is actually providing services similar to Complainant’s or fraudulently representing that it does but instead luring the customer into bogus investment arrangements as alleged by Complainant. Under either scenario, however, Respondent’s conduct fits squarely within the circumstances described in Policy ¶ 4(b)(iv) and is manifest evidence of bad faith registration and use. Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
As discussed above, Respondent is using the Domain Name to pass off as Complainant. Policy ¶ 4(b) recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing off as a complainant, in and of itself, is evidence of bad faith. Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant.”).
As noted above, it is likely that Respondent is using the website resolving from the Domain Name to phish for sensitive personal and private information from visitors. Such a use can only be described as exhibiting bad faith in the registration and use of the domain name. Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (finding that a UDRP respondent’s use of a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s … website, and is used to fraudulently acquire personal information from Complainant’s clients” was evidence of bad faith registration and use).
Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name in January 2022 (WHOIS information submitted to the Forum by the registrar shows creation date). Complainant’s ATLAND FONCIÈRE mark was registered in 2018 (INPI registration certificate included in Complaint Exhibit A). Respondent passes off as Complainant, using exactly the same entity name and logo as is used by Complainant and purports to offer the same services offered by Complainant. There is no question that it knew of Complainant and its mark when it registered the Domain Name. Given the non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fonciere-atland.com> Domain Name be TRANSFERRED from Respondent to Complainant
Charles A. Kuechenmeister, Panelist
June 16, 2022
[i] The Complaint refers in several places to “the domain names at issue” but it identifies only one domain name, <fonciere-atland.com> as being the subject of this proceeding. The Panel has addressed only that domain name in its Decision.
[ii] As Complaint Exhibit D, Complainant submitted advertising materials allegedly used by Respondent which also mimic and copy the appearance and style of Complainant, even to the extent of providing the same street address as shown for Complainant in the Complaint. There is no allegation or any evidence, however, that the Domain Name was used to publish or distribute these materials.
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