The Complainant is Groupe Auchan of Croix, France, represented by Dreyfus & associés, France.
The Respondent is Gilles Rocuet, Auchangroup, of Asnieres, France. 2. The Domain Name and Registrar
The disputed domain name is registered with Key-Systems GmbH dba (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2015. On February 4, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 5, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On February 11, 2015, the Center sent an email communication to the parties in both French and English regarding the language of the proceeding. On the same date, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 February 18, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 10, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 11, 2015.
The Center appointed Christophe Caron as the sole panelist in this matter on March 27, 2015. 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.
According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is French. The Complainant requests that the language of the proceedings should be English. The Respondent did not submit any comments. The Panel notes that all of the communications from the Center to the parties were transmitted in both French and English. In the circumstances, the Panel determines that English is the language of the proceedings. 4. Factual Background
The Complainant, Groupe Auchan, is a world leading group in the food retail industry created in 1961.
The Complainant is the owner of the following trademarks:
- French trademark AUCHAN No 1381268 dated November 24, 1986 renewed and that covers goods and services in classes 1 to 45;
- French figurative trademark AUCHAN No 3630779 dated February 18, 2009 and that covers goods and services in classes 1 to 45.
In addition, the Complainant operates domain names reflecting its trademarks:
- registered on December 11, 2001;
- registered on February 11, 1997.
The disputed domain name was registered on October 10, 2014.
Moreover, a cease and desist letter was sent on November 14, 2014 by the Complainant to the Respondent in order to settle the dispute, but the Respondent did not reply to this letter, despite several reminders. 5. Parties’ Contentions A. Complainant
The Complainant makes the following submissions and arguments.
The Complainant first argues that the disputed domain name is confusingly similar to its trademarks and that the disputed domain name reproduces its trademarks in its entirety, which previous panels have considered to be well-known. The disputed domain name associates the generic term “group” to the Complainant’s famous trademarks. The addition of a generic term is insufficient to give distinctiveness to the disputed domain name and to avoid confusing similarity. Besides, Complainant is most commonly known under the name of “Groupe Auchan”. Accordingly, the disputed domain name creates a likehood of confusion with Complainant’s trademarks.
According to the Complainant, the Respondent has no right or legitimate interests in respect of the disputed domain name. Respondent is not in any way affiliated with Complainant, nor has Complainant authorised or licensed Respondent to use its trademarks, or to seek registration of any domain name incorporating the said trademarks. The Complainant adds that the registration of the AUCHAN trademarks preceded the registration of the disputed domain name for years. Moreover, the Respondent is not a registered company in France with the name “Auchangroup”.
Finally, the Complainant states that the disputed domain name was registered and is being used in bad faith. According to the Complainant, it is implausible that Respondent was unaware of Complainant when it registered the disputed domain name. The Complainant states that AUCHAN is a well-known trademark throughout the world especially in France – the home country of Respondent. Bad faith has already been found where a domain name is so obviously connected with a well-known trademark that its very use by someone with no connection to the trademark suggests opportunistic bad faith.
The Complainant considers that a quick AUCHAN trademark search would have revealed to the Respondent the existence of the Complainant and its trademarks. According to the Complainant, another important factor contributing to the Respondent’s bad faith is the choice of the disputed domain name including the Complainant’s trademark and the generic term “group” corresponding to the Complainant’s corporate name suggests that the Respondent was perfectly aware of the Complainant and its AUCHAN trademarks. Moreover, the Complainant argues that the Respondent does not use the disputed domain name at present as it is currently inactive. This state of inactivity does not mean that the domain name is used in good faith. Previous panels have already considered that passive holding of a disputed domain name can satisfy the requirements of paragraph 4(a)(iii), and that in such cases the panel must give close attention to all the circumstances of the respondent’s behaviour.
For all of the above reasons, the Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant is the owner of the following French trademarks:
- French trademark AUCHAN No 1381268 dated November 24, 1986 renewed and that covers goods and services in classes 1 to 45;
- French figurative trademark AUCHAN No 3630779 dated February 18, 2009 and that covers goods and services in classes 1 to 45.
This Panel finds that the disputed domain name reproduces the Complainant’s trademarks. Furthermore, this Panel believes that since the term “auchan” is included in the disputed domain name, the likelihood of confusion is accentuated by the notoriety of the Complainant’s AUCHAN trademarks.
In this Panel’s opinion, the addition of the term “group” in the disputed domain name does not prevent a finding of confusing similarity. Moreover, its addition leads the public to believe that the Complainant is the owner of the disputed domain name, since the Complainant is most commonly known under the name “Groupe Auchan”.
The Panel therefore finds that the disputed domain name is confusingly similar to registered trademarks in which Complainant has rights. Thus, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy provides examples of circumstances that can demonstrate the existence of rights or legitimate interests in a domain name, as follows:
“(i) before any notice to you of the dispute, your 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; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.”
This Panel is satisfied that the Respondent does not appear to have been commonly known by the disputed domain name, it is not a licensee or an agent of the Complainant, nor in any way is authorized to use the Complainant’s trademarks.
Furthermore, the disputed domain name was registered on October 10, 2014, well after the Complainant’s registration of its famous trademarks. The Respondent cannot claim to have been using the term “auchan” without being aware of the Complainant’s rights to it. To this Panel, this proves that the Respondent’s interests cannot have been legitimate.
Therefore, this Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name, as it is currently inactive.
Hence, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) of the Policy is also satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances, which “in particular but without limitation”, shall be evidence of the registration and use of a domain name in bad faith. These four circumstances, which are framed in the alternative, but are expressly non-exclusive, are:
“(i) circumstances indicating that you have registered or you have 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally 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.”
Regarding the reputation of the AUCHAN trademarks, it is difficult to imagine that the Respondent could have ignored it at the time of the registration noting that the Respondent appears to be located in France. The Panel therefore considers that the disputed domain name has been registered in bad faith.
Moreover, the Respondent registered the disputed domain name under fanciful references, in violation of the Policy. It may assert the bad faith registration of the disputed domain name.
The choice of removing the letter “e” of the term “group” in the disputed domain name can be an evidence of bad faith. The Respondent can use this practice in order to redirect the users who could make misspellings to its website. It can be considered as a typosquatting act.
The Panel notes that the disputed domain name is currently inactive. Passive holding of a domain name can also be an evidence of bad faith use.
For all these reasons, it appears to this Panel that the disputed domain name has been registered and is being used in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy is made out. 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.
Christophe Caron
Sole Panelist
Date: April 10, 2015
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