The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
The Respondent is Guoxing Xu of Jinan, Shandong, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Go China Domains, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 3, 2017. On April 3, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 10, 2017, 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.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 10, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11. 2017.
The Center appointed Karen Fong as the sole panelist in this matter on May 29, 2017. 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 is the largest retailer in Europe, operating in four store formats – hypermarkets, supermarkets, convenience stores and cash and carry shops for professionals. With more than 11,500 stores in more than 30 countries, it generated revenues of EUR 104.4 billion under banners in 2013. With its head office based in France, it generates more than 53% of its sales outside France. The Complainant’s group of companies operates 441 stores in Asia including China. In order to enhance its relationship with its customers in China, the Complainant created a new app especially for its Chinese customers to enable them to shop online, get discount coupons, consult their loyalty accounts, win gifts and find stores. The Complainant has several websites including one catering to customers in China under . The domain name was registered in March 17, 2003 whilst was registered on October 25, 1995.
The Complainant trades under the name CARREFOUR. It has a large portfolio of trade mark registrations for the mark CARREFOUR (the “Trade Mark”) globally including in China, for example, Chinese trade mark registration no. 788489, registered on November 7, 1995.
The Domain Name was registered on September 26, 2016. It is connected to a GoDaddy parking page. On October 11, 2016, the Complainant’s representatives sent a cease-and-desist letter to the Respondent requesting for a transfer of the Domain Name free of charge. After three reminders sent, the Respondent replied suggesting that it would charge for the transfer of the Domain Name. The Complainant’s reiterated its request for a transfer without charge as the Respondent had breached the registration agreement. No response was received. The letter by post was also returned as the address had insufficient details. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests with respect to the Domain Name and that the Domain Name was registered and being used in bad faith. The Complainant requests transfer of the Domain Name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and being used in bad faith. B. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has registered and unregistered rights to the Trade Mark.
The threshold test for confusing similarity involves the comparison between the trade mark and the domain name itself to determine whether the domain name is confusingly similar to the trade mark. The trade mark would generally be recognizable within the domain name. In this case the Domain Name contains the Complainant’s Trade Mark in its entirety. The only difference is that the Domain Name has a descriptive Top-Level Domain (“TLD”), “.shop”. For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the TLD as it is viewed as a standard registration requirement.
The Panel finds that the Domain Name is identical to a trade mark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. C. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s 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) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers, or to tarnish the trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of WIPO Overview 3.0 that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant right or legitimate interest, the panel weighs all the evidence, with the burden of production always remaining on the complainant.
The standard of proof required under the UDRP is “on balance”. An asserting party needs to establish that it is more likely than not that the claimed fact is true.
The Respondent is not affiliated to the Complainant in any way nor has he been authorised by the Complainant to register and use the Domain Name. It has no independent right to the Domain Name. The offer for sale of a domain name which does not appear to have any connection to the Respondent but is instead a well-known trade mark of another’s cannot amount to legitimate activity in connection with the Domain Name. The Respondent has also not shown that he is making legitimate noncommercial or fair use of the Domain Name.
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith
To succeed under the Policy, a Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent must have been aware of the Complainant’s Trade Mark when he registered the Domain Name. It is implausible that it was unaware of the Complainant when he registered the identical Domain Name. The Complainant is well known through the world including in China where the Respondent is based. To the Respondent located in China, the primary significance of “carrefour” most likely is its reference to the Complainant’s Trade Mark and company name. This is particularly evident given the Respondent’s choice of the TLD “.shop”. In the WIPO Overview 3.0, paragraph 3.2.2 states as follows:
“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.”
The fact that there is a clear absence of rights or legitimate interests coupled with no credible explanation for the respondent’s choice of the domain name is also a significant factor to consider (as stated in section 3.1.1 of WIPO Overview 3.0). The Domain Name falls into the category stated above and the Panel finds that registration is in bad faith.
The Domain Name is also used in bad faith. The Domain Name directs to the Registrar’s parking page, akin to an inactive page. WIPO Overview 3.0 states that:
“from the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding.
While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put”.
In this case, the Complainant’s trade mark is well known, the Respondent after a number of reminders to respond to the Complainant’s cease-and-desist letter, replied suggesting to sell the Domain Name. It then failed to respond to the Complainant’s rejection of its proposition and requesting a transfer once again. It also failed to file a response and its address on the WhoIs lacks specificity and therefor hard copy correspondence sent to the address was returned. It is implausible that there can be any good faith use to which the domain name may be put by the Respondent given the present facts. Considering the circumstances, the Panel considers that the Domain Name is also being used in bad faith.
Accordingly, the Complaint has satisfied the third element of the UDRP. 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 Domain Name, , be transferred to the Complainant.
Karen Fong
Sole Panelist
Date: June 15, 2017
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