The Complainant is Association des Centres Distributeurs Leclerc - ACD LEC of Ivry-Sur-Seine, France, represented by Inlex IP Expertise, France.
The Respondent is Optura Pty Ltd. of Wishart, Australia. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 21, 2011. On July 21, 2011, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On July 22, 2011, GoD, Inc.. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 July 25, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 14, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 15, 2011.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on August 24, 2011. 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 is a French corporation in the business of operating supermarkets, hypermarkets, tourism offices, event ticket offices and other products and services.
Complainant is the owner of several French, Community and International trademarks for the mark LECLERC, alone or combined with other words, the first of which registered in 1967. Complainant uses its mark in connection with supermarkets and hypermarkets in France and other European countries. Complainant also uses LECLERC mark in connection with tourism, photography and event ticketing services, including a ticketing service named “La Billetterie E. Leclerc” (“billetterie” being the French word for “ticket office.”)
Complainant sent several cease and desist letters and reminder letters to Respondent in December 2010, January and February 2011, but has received no response. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s trademark, that Respondent has no rights or legitimate interests in the disputed domain name, and that Respondent registered and used the domain name in bad faith, in an attempt to attract Internet users to the domain name based on confusion with Complainant’s mark. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and used in bad faith.
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.” A. Identical or Confusingly Similar
Complainant has demonstrated that it owns strong rights in the trademark LECLERC in connection with numerous products and services, including ticket offices, for which it uses the brand E. LECLERC. The disputed domain name incorporates Complainant’s trademark in its entirety. The addition of the descriptive term “billeterie” (a misspelled reference to the French word “billetterie” meaning “ticket office”) does not add any distinctive subject matter for the purpose of evaluating confusing similarity.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests
Respondent is not a franchisee, authorized dealer, affiliated business or licensee of Complainant. Respondent is not an authorized agent of Complainant and Complainant has not authorized Respondent to register the disputed domain name or to otherwise use Complainant’s mark.
Respondent is not and has not been commonly known by the disputed domain name. There is no evidence that Respondent has made any demonstrable preparation for use of the disputed domain name in connection with a bona fide offering of services. Rather, the record indicates that Respondent registered and used the disputed domain name in an to attempt to divert Internet users to Respondent’s website, which initially provided links to Complainant’s competitors. Such use does not constitute a bona fide, legitimate use of the disputed domain name.
Accordingly, the Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the disputed domain name in bad faith:
(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 who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the 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 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 the respondent’s website or location of a product or service on the respondent’s website or location.
The record indicates that Respondent was most likely aware of Complainant’s trademark rights and use of Complainant’s trademark in connection with many “billetterie” ticket offices and on its website at the time Respondent registered the disputed domain name. This explains Respondent’s addition of the descriptive term “billeterie” (misspelled) in the disputed domain name.
The record indicates that Respondent is using the disputed domain name in an attempt to intentionally attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or products or services on Respondent’s website.
The Panel finds that Respondent has registered and used the disputed domain name in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Dated: September 6, 2011
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