ORANO SA v. Richard Bermond
Claim Number: FA2209002014162
Complainant is ORANO SA (“Complainant”), represented by Khaddyja Mbalo of CSC Digital Brand Services AB, Sweden. Respondent is Richard Bermond (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oranogroups.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 30, 2022; Forum received payment on September 30, 2022.
On September 30, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <oranogroups.com> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 3, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 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@oranogroups.com. Also on October 3, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that it operates a multinational nuclear fuel cycle company. Complainant’s roots can be traced back to 1976 when based on the production division of the French Alternative Energies and Atomic Energy Commission (CEA), the Compagnie générale des matières nucléaires (COGEMA, now Orano Démantèlement) was created. In 2001, COGEMA merged with Framatome and CEA Industrie to form Areva. Due to financial difficulties, Areva had to undergo a restructuring process in 2016, which resulted in the creation of the New Areva. In this connection, on July 26, 2017, New Areva received a capital increase from the French state, who became the company’s majority shareholder. On January 22, 2018, New Areva approved the change of name and adopted “Orano” as the new corporate name. Today, Complainant continues to share its expertise on nuclear materials, allowing its 16,000 employees worldwide to contribute to the development of society in the energy and medical radiological research fields. It operates 17 industrial sites in France, and invested 300 million euros in the safety of its facilities. In 2018, Complainant reported a revenue of 3.6 billion euros, 53% of which are from international customers. Complainant’s primary web site is at <orano.group>, which domain name domain name was registered in 2017. Complainant has rights in the ORANO mark based on registration with the World Intellectual Property Office in 2017.
Complainant alleges that the disputed domain name is identical or confusingly similar to its ORANO mark because it contains the entire ORANO mark and merely adds the generic/descriptive term “groups” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent is neither an authorized user nor licensee of the ORANO mark. Respondent does not use the disputed domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use, but rather to pass off as one of Complainant’s legitimate employees to conduct a phishing scheme. The resolving website is a parked page displaying advertising links to products and services not related to Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name and an email account associated with it to pass off as Complainant in order to conduct a phishing scheme. The resolving website displays advertising links not related to Complainant’s business. Respondent failed to respond to a cease-and-desist letter, and utilized a privacy service to hinder Complainant’s ability to seek out Respondent. Respondent had actual knowledge of Complainant’s rights in the ORANO mark when registering the disputed domain names. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ORANO, with rights dating back to 2017, and uses it to operate a multinational nuclear fuel cycle company.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name is used in furtherance of an email phishing scheme. The signature block of the email displays Complainant’s mark, legitimate web site, and actual physical address. The resolving website displays pay-per-click advertising hyperlinks to products and services that are not related to Complainant’s business.
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 and is being used in bad faith.
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 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 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”).
The disputed domain name incorporates Complainant’s ORANO mark in its entirety, and merely adds the generic/descriptive term “groups” and the “com” gTLD. This is not sufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by an infringing domain name. See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies “Richard Bermond” as the registrant of the disputed domain name. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain names to pass off as one of Complainant’s employees in furtherance of an email phishing scam. Passing off in furtherance of a phishing scheme generally demonstrates a lack of rights and legitimate interests in a domain name under Policy ¶¶ 4(c)(i) or (iii). See 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 Panel therefore finds that Respondent fails to use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
The disputed domain name resolves to a parked page that displays pay-per-click advertising hyperlinks to products and services not related to those of Complainant. Use of a domain name to resolve to a webpage displaying third party hyperlinks is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). The Panel finds, for this reason also, that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
And, for all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name in emails to pass off as Complainant to conduct a phishing scam. Past Panels have found that such use demonstrates bad faith disruption and attraction to commercial gain under Policy ¶¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Therefore the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Further, also as already noted, the resolving website contains advertising links to third party websites unrelated to Complainant’s business. Use of a domain name to resolve to a page of third-party links can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the phishing emails displays Complainant’s mark, legitimate website, and actual physical address. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oranogroups.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 2, 2022
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