The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
The Respondent is Zeng Feng Ling of Guangzhou, Guangdong, China / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with HiChina Zhicheng Technology Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 6, 2015. On November 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 9, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 11, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 12, 2015.
On November 10, 2015, an email communication was received from the Respondent in which the Respondent indicated that the disputed domain name was registered for online registration for "Carrefour Suppliers Conference", and the disputed domain name was not used after April 24, 2015. The Respondent also appeared to be willing to settle the dispute. On November 11, 2015, the Center informed the parties if they would like to explore the possibility of settlement, the Complainant would need to submit a request for suspending the proceeding. On November 12, 2015, the Complainant indicated it did not want to suspend the proceeding.
On November 11, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On November 12, 2015, the Complainant confirmed its request that English be the language of the proceeding. On November 13, 2015, the Respondent requested that Chinese be the language of the proceeding.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint in both Chinese and English, and the proceeding commenced on November 17, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 7, 2015. On December 8 and 9, 2015, the Center informed the parties that except for the above-mentioned email communications from the Respondent, the Respondent did not file any formal Response. The Center would proceed with panel appointment shortly.
The Center appointed Sok Ling MOI as the sole panelist in this matter on December 15, 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. 4. Factual Background
The Complainant, headquartered in France, is one of the largest retailers in the world, offering a range of products and services in hypermarkets, supermarkets, convenience stores and cash-and-carry shops for professionals. It has more than 10,800 stores in 34 countries and generates revenues in excess of EUR 100.5 billion in 2014. The Complainant has in recent years extended its activities to Asia and operates 396 stores in various Asian countries including China. In 2015, the Complainant opened a new hypermarket "Carrefour Lixin Renmin Road" in the province of Anhui in China.
The Complainant owns several trade mark registrations for CARREFOUR around the world, including the following Chinese trade mark registrations:
Country
Trade Mark
Registration Number
Registration Date
China
CARREFOUR
795806
November 28, 1995
China
CARREFOUR
8696287
November 7, 2011
The Complainant also owns, and operates websites through, the following domain name registrations reflecting its registered trade marks to promote its services:
registered on October 25, 1995;
registered on November 1, 2000.
The disputed domain name was registered on March 31, 2015, long after the Complainant has registered its trade mark CARREFOUR in China. Based on the Complainant's evidence and as at the date of this decision, the disputed domain name resolves to a website containing both English and Chinese contents and reproducing the Complainant's trade marks and logo (CARREFOUR, 家乐福). The said website appears to offer online registration for participants to an event named "Carrefour Supplier Conference" held in Shanghai on April 24, 2015. 5. Parties' Contentions A. Complainant
Over the past 50 years, the Complainant has grown to become a world leader in the retail sector, being the largest retailer in Europe and the second-largest in the world. Every day, the Complainant welcomes more than 10 million customers around the world. It generates more than 53% of its sales from outside France.
The Complainant and its trade mark enjoy a worldwide reputation. A.1. The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:
The disputed domain name reproduces the Complainant's trade mark CARREFOUR which trade mark previous UDRP panels have considered to be "well known" or "famous". The incorporation of a trade mark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to the Complainant's trade mark. The addition of the generic term "conference" does not dispel any likelihood of confusion. Also, the addition of the generic Top-Level Domain ("gTLD") ".com" is insufficient to avoid a finding of confusing similarity. A.2. The Respondent has no rights or legitimate interests in respect of the disputed domain name:
As the reputation of the Complainant's trade mark CARREFOUR preceded the registration of the disputed domain name, the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain name.
The Respondent is not commonly known by the name "Carrefour", nor is in any way affiliated with the Complainant, nor authorized or licensed to use the trade mark CARREFOUR, or to seek registration of any domain name incorporating the trade mark.
In addition, the Respondent did not demonstrate use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Indeed, the disputed domain name resolves to a page reproducing the trade mark CARREFOUR and its logo and relating to a conference held in Shanghai on April 24, 2015.
Furthermore, the Respondent registered the disputed domain name with a privacy shield service to hide its identity and contact details, thus preventing the Complainant from contacting it. Such behaviour highlights the fact that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Moreover, the Respondent never replied to the Complainant's cease-and-desist letter despite the reminders. Previous UDRP panels have repeatedly stated that when the Respondent do not avail itself of its rights to respond to the Complainant, it can be assumed that the Respondent has no rights or legitimate interests in the disputed domain name. A.3. The disputed domain name was registered and is being used in bad faith:
It is implausible that the Respondent was unaware of the Complainant when it registered the disputed domain name. CARREFOUR is a well-known trade mark throughout the world including China where the Respondent is located. Indeed, the Respondent was obviously aware of the CARREFOUR trade mark when registering the disputed domain name as it had reproduced the Complainant's CARREFOUR trade mark on its website "www.".
The Respondent uses the disputed domain name to direct Internet users to a webpage reproducing the trade mark and logo of the Complainant and relating to a conference held in Shanghai on April 24, 2015. As such use of the disputed domain name was not authorized by the Complainant, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation, or endorsement of its website.
Furthermore, the Respondent registered the disputed domain name through a privacy shield service to hide its identity and contact details, thus, preventing the Complainant from contacting it. Prior UDRP panels have confirmed that a deliberate concealment of identity and contact information may in itself indicate registration in bad faith.
Moreover, the Respondent never replied to the Complainant's cease-and-desist letter despite the reminders. Previous UDRP panels have drawn an inference of bad faith from such behaviour. B. Respondent
The Respondent did not file a formal Response to the Complainant's contentions except for the email communications mentioned in the procedural history.
In its email communication of November 10, 2015, the Respondent indicated that the disputed domain name was registered for online registration for "Carrefour Suppliers Conference", and the disputed domain name was not used after April 24, 2015. In its email communication of November 13, 2015, the Respondent requested that Chinese be the language of the proceeding. 6. Discussion and Findings 6.1. Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
Paragraphs 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the parties are treated fairly and given a fair opportunity to present their respective case.
The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding.
On the record, the underlying Respondent (Zeng Feng Ling) appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:
(a) the disputed domain name is registered in Latin characters, rather than Chinese script;
(b) the disputed domain name resolved to a website with contents in English;
(c) the Respondent communicates through an email address amywang@[..].com which comprises entirely of Latin characters.
Additionally, the Panel notes that:
(a) the Center has notified the Respondent of the proceeding in both Chinese and English;
(b) the Center informed the Respondent that it would accept a Response in either English or Chinese; and
(c) the Respondent has been given the opportunity to present its case in this proceeding but has chosen not to do so.
Considering the above circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. To require the Complaint and all supporting documents to be translated into Chinese would in the circumstances of this case cause an unnecessary cost burden to the Complainant and unfairly disadvantage the Complainant. The proceeding would be unnecessarily delayed.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that (i) it shall accept the Complaint and all supporting materials as filed in English, and the Respondent's email communications in Chinese; and (ii) English shall be the language of the proceeding and the decision will be rendered in English. 6.2. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be transferred:
(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(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.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in the CARREFOUR name and mark by virtue of its use and registration of the same as a trade mark.
The disputed domain name effectively incorporates the Complainant's trade mark CARREFOUR in its entirety. The addition of the word "conference" does not serve to sufficiently distinguish or differentiate the disputed domain name from the Complainant's trade mark. The addition of the gTLD ".com" does not impact on the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant's trade mark in this case.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant bears the burden of establishing that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao internet foshan co, ltd,WIPO Case No. D2013-0974.
There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term "Carrefour". According to the WhoIs record, the Respondent's name is "Zeng Feng Yi / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service)". However, in its emails to the Center, the Respondent signed off as "Amy Wang". In any event, whichever name the Respondent is known by, it is not similar to "Carrefour". The Panel is satisfied that the Complainant has made out a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name.
In its emails of November 10, 2015 and November 13, 2015, the Respondent claimed that the disputed domain name was registered for the purpose of assisting with the online participant registration for the "Carrefour Supplier Conference" held in Shanghai on April 24, 2015. The Respondent went on to claim that the disputed domain name and/or website was not and will not be used after the said event. The Panel finds these assertions to be unconvincing, as discussed further below. In any event, since the Respondent has admitted that after April 24, 2015 it has no further use of the disputed domain name, it is clear the Respondent does not have any rights or legitimate interests in the disputed domain name.
The Panel therefore determines that the Respondent has failed to demonstrate that it has any rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the disputed 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 trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trade mark 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 disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed 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 or of a product or service on the Respondent's website or location.
The Respondent uses the disputed domain name to direct Internet users to a webpage reproducing the trade mark and logo CARREFOUR and relating to a conference held in Shanghai on April 24, 2015. It is therefore clear that the Respondent has knowledge of the Complainant and its trade mark CARREFOUR. The Complainant's CARREFOUR is a well-known mark throughout the world.
In this regard, the Panel finds the Respondent's explanation for the choice of the disputed domain name to be unconvincing. Apart from mere assertions, the Respondent has not provided any further information about the said "Carrefour Supplier Conference" and the source (e.g., Carrefour China?) from where it obtained the authority to use the Complainant's trade mark and logo on its website and to organise the online registration for the said event. More importantly, since the Respondent admitted that it now has no further use for the disputed domain name, the fact that the Respondent did not therefore voluntarily offer to cancel or transfer the disputed domain name to the Complainant despite receiving notice of commencement of this proceeding, raises suspicions about its explanation. This, in the Panel's opinion, is an indication of bad faith.
The Panel determines that the Respondent's intention in registering the disputed domain name is to unfairly attract Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation, or endorsement of the Respondent's website. As such, the Panel is satisfied that the Respondent has intention to use the disputed domain name for mala fide purpose and illegitimate financial gain, and the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.
The Panel also notes that efforts to contact the Respondent at the physical address provided to the Registrar failed which suggests that the Respondent had provided false contact details. The Panel finds this to establish a further indication of bad faith.
The Respondent had also registered the disputed domain name through a privacy shield service to hide its identity and contact details. Such a deliberate concealment of identity and contact information does, in the present circumstances, provide further evidence of bad faith registration.
Taking into account all the circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of the Policy. 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.
Sok Ling MOI
Sole Panelist
Date: January 8, 2016
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