The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
The Respondent is Yujinhua of HeFeiShi, China. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Eranet International Limited (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 19, 2014. On February 20, 2014, the Center transmitted by email to CentralNic and the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 20 and February 24, 2014, CentralNic and the Registrar transmitted respectively by email to the Center verification responses confirming that the Respondent is listed as the registrant and providing the contact details. Further to the Center’s request for an amendment of the Complaint in relation to its Mutual Jurisdiction election, the Complainant submitted an amended Complaint on February 27, 2014.
The Center verified that the Complaint and the amended Complaint satisfied the formal requirements of the CentralNic Resolution Policy (the “Policy”), the Rules for CentralNic Dispute Resolution Policy (the “Rules”) and WIPO Supplemental Rules for CentralNic 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 amended Complaint, and the proceedings commenced on February 28, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 20, 2014. As the Respondent did not submit a Response by this date, the Center notified the Respondent’s default on March 21, 2014, upon which the Respondent sent an email communication to the Center in response to the Complaint.
The Center appointed Soh Kar Liang as the sole panelist in this matter on March 27, 2014. 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
The Complainant operates hypermarkets around the world under the trademark CARREFOUR. Since 1959, it has developed hypermarket, supermarket, convenience store and cash-and-carry operations in over 30 countries and employs 360,000 people. As of December 31, 2013, the Complainant owns 236 stores in China alone. Five of these stores opened in December 2013.
The Complainant owns numerous trademark registrations for CARREFOUR, including the following:
Jurisdiction
Trade mark
Trade Mark No.
Class
Date of Registration
China
CARREFOUR
8696287
35
November 07, 2011
International (WIPO)
CARREFOUR
1010661
35
April 16, 2009
Previous UDRP panels have held that CARREFOUR is a well-known mark (see Carrefour S.A. v. Patrick Demestre,WIPO Case No. D2011-2248; Carrefour SA v. Eric Langlois,WIPO Case No. D2007-0067).
In addition, the Complainant operates websites under various domain names incorporating the CARREFOUR trademark, including: Domain Name Date of Registration
November 14, 2000
October 25, 1995
June 23, 2005
April 27, 2006
November 1, 2000
Very little information about the Respondent is available although it appears that the Respondent also adopts the name “Frank”. The Complainant sent a cease and desist letter to the Respondent on October 24, 2013 demanding among other things the voluntary transfer of the Disputed Domain Name. The letter was followed by reminders on November 4, 2013, November 13, 2013 and November 20, 2013. The Respondent did not reply to any of them.
The Disputed Domain Name was created on July 31, 2013. As of September 17, 2013, the Disputed Domain Name redirected to a landing page which promoted the registration of “.hk” domains associated under the website “”. As of January 16, 2014, the Disputed Domain Name resolved to a Chinese language website with the most prominent feature on the homepage being a large banner with the tagline “爱不怕距离” which translates to “love does not fear distance”. The banner is followed by a few lines after with a short statement holding out the website as promoting human relationship, food safety, consumer rights and employee rights. The trademark CARREFOUR did not appear. 5. Parties’ Contentions A. Complainant
The Complainant contends that:
(a) The Disputed Domain Name is identical to the Complainant’s trademark and company name Carrefour. The Dispute Domain Name reproduces entirely the trademark CARREFOUR;
(b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent is not affiliated with the Complainant in any way and has not been authorized or licensed to use the trademark CARREFOUR or to use and register any domain name incorporating its trademark CARREFOUR. The Respondent is not known by the name “Carrefour”; and
(c) The Disputed Domain Name was registered in bad faith. It is implausible that the Respondent was unaware of the Complainant and its trademark CARREFOUR. The trademark CARREFOUR is well known throughout the world. All the first results of a simple search via Google using the keyword “Carrefour” relate to the Complainant’s products, news or trademark. The Disputed Domain Name was used in bad faith. The Respondent likely registered the Disputed Domain Name to prevent the Complainant from reflecting its trademark in the Disputed Domain Name. The Disputed Domain Name previously resolved to a website intended for commercial gain. B. Respondent
The Respondent did not reply to the Complainant’s contentions by the due date for filing a Response. Upon being notified of the default on March 21, 2014, the Respondent responded on the same day contending that he did not register the Disputed Domain Name to compete with the Complainant but to promote food safety in China where Carrefour often sold unchecked and poisonous food. The Respondent claimed to be a regular consumer of the Complainant’s supermarket in Hefei city, Anhui Province, China. He wanted to set up a website where all Carrefour customers may submit complaints and advice to warn others. The Respondent demanded that Complainant “publicly guarantee all the foods in their market are safe” (sic). 6. Discussion and Findings
To succeed in this proceeding, the Complainant must establish all three limbs of paragraph 4(a) of the Policy, namely;
(a) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(c) The Disputed Domain Name has been registered or is being used in bad faith
The Panel proceeds to consider each of these three limbs in turn. A. Identical or Confusingly Similar
The trademark CARREFOUR is registered by the Complainant in multiple jurisdictions and the Complainant accordingly enjoys trademark rights therein. The Disputed Domain Name contains the entire trademark. It is the consensus of UDRP panels and the Panel’s view that the facts presented in this case satisfy the requirements of the first limb of paragraph 4(a) of the Policy. The Panel holds that the first limb of paragraph 4(a) of the Policy is established. B. Rights or Legitimate Interests
The Complainant is required to show a prima facie case that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant has confirmed that the Respondent is neither affiliated with nor authorized or licensed by the Complainant to use the trademark CARREFOUR. There is no evidence to suggest that the Respondent is known by the name “Carrefour” and the Respondent has not made any such claim. On the contrary, the Respondent has admitted to being a regular customer of the Complainant and clearly has prior knowledge of the Complainant and the trademark CARREFOUR.
The Complainant has clearly established a prima facie case on the evidence that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and the burden of production falls on the Respondent to rebut the prima facie case. The Respondent’s only coherent submission in this regard is an unsupported allegation that the Complainant sold unchecked or even poisonous food and the Disputed Domain Name was registered for Carrefour customers to submit complaints and advice to warn others. Such an allegation obviously involves very serious public health issues that must have received significant press and media coverage, which would be readily accessible to the Respondent. Unfortunately, there is not a single iota of evidence of such nature presented before the Panel for consideration. Further, no support for such allegation could be found in the evidence of the website resolved from the Disputed Domain Name as of January 16, 2014.
The Panel cannot be persuaded to set aside the Complainant’s prima facie case by the Respondent’s bare and unsupported allegation, and holds that the second limb of paragraph 4(a) is established in the circumstances. C. Registered in Bad Faith or Used in Bad Faith
Based on the evidence submitted, the Panel accepts that the trademark CARREFOUR is well known. The Respondent was admittedly aware of the trademark CARREFOUR when the Disputed Domain Name was registered.
The Policy, paragraph 4(b)(iv) identifies the following as bad faith registration and use by a registrant:
“by using the domain name, you have intentional attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location”
The landing page to which the Disputed Domain Name resolved prior to January 16, 2014 promoted the registration of “.hk” domains and was clearly intended for commercial gain. The Panel also notes that it was only after the series of cease and desist letters in October and November 2013 was sent to the Respondent that the website was changed. In the light of the fame in the trademark CARREFOUR it is highly probable that the Respondent registered the Disputed Domain Name to attract Internet users by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement of the website for commercial gain.
The Panel suspects that the website as of January 16, 2014 may have been adopted in response to the Complainant’s cease and desist letters. As much as the Respondent portrayed himself as an anti-Carrefour evangelist in the Response, the website resolved from the Disputed Domain Name as of January 16, 2014 did not appear to go that distance. Beyond an oblique and bare reference to food safety, there is nothing on the website as presented in the evidence which supports the Respondent’s contention that he intended to set up a website for Carrefour customers to submit complaints and advice to warn others. Even if the Respondent’s intentions were to be believed, the Respondent could readily have done so under any domain name. Instead, the Respondent selected the Complainant’s trademark alone for registration as the Disputed Domain Name. Particularly because the Complainant’s trademark is well-known, there is a significant likelihood that the Disputed Domain Name may be mistaken by Internet users as that of or associated with the Complainant.
Further, paragraph 4(b)(iii) of the Policy identifies another instance of bad faith registration and use whereby a registrant registers a domain name primarily for the purpose of disrupting the business of a competitor. Previous UDRP panels have clarified that a “competitor” for the purposes of paragraph 4(b)(iii) is not limited to a business or commercial competitor but is one who acts in opposition to another, in particular the Complainant (see Mission KwaSizabantu v. Benjamin Rost,WIPO Case No. D2000-0279; The Toronto-Dominion Bank v. Boris Karpachev,WIPO Case No. D2000-1571). The Respondent has unequivocally admitted his opposition to the Complainant’s alleged “unchecked and poisonous food” (but nevertheless remaining a regular customer). Therefore, even if the Respondent’s intentions were to be believed for the sake of argument, the Respondent is a “competitor” within the meaning of paragraph 4(b)(iii). By his own representation, the Respondent purportedly intended to publish on the website resolved from the Disputed Domain Name negative views of the Complainant and the Complainant’s products which would potentially undermine the Complainant in the eyes of visitors to the website. Such proposed activities would therefore be disruptive of the business of the Complainant.
In the light of the above, the Panel holds that bad faith registration and/or bad faith use under the third limb of paragraph 4(a) has been established by the evidence submitted herein. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Soh Kar Liang
Sole Panelist
Date: April 24, 2014
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