The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
The Respondent is Eliza Maria of Joao Pessoa, Paraiba, Brazil. 2. The Domain Name and Registrar
The disputed domain name is registered with FastDomain, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2017. On December 19, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 8, 2018, 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 January 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 1, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on February 2, 2018.
The Center appointed Dennis A. Foster as the sole panelist in this matter on February 28, 2018. 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 provides retail food products on a global basis, operating approximately 12,000 stores in more than 30 countries. The Complainant conducts much of its operations under the CARREFOUR mark, for which the Complainant holds International (e.g., Registration No 351147; registered on October 2, 1968) and European Union (e.g., Registration No. 005178371; registered on August 30, 2007) trademark registrations, among others.
The Respondent owns the disputed domain name, , which was registered on August 14, 2017. The disputed domain name is used now to host a website, which presents sponsored links to third-party websites offering products and/or services that compete with those offered by the Complainant, and which is attached to an email server. 5. Parties’ Contentions A. Complainant
- Operating nearly 12,000 stores in more than 30 countries, the Complainant is a global leader in retail food distribution. With 2016 sales amounting to EUR 103.7 Billion, the Complainant serves 13 Million customers daily and employs in excess of 38,000 people. The Complainant’s stores are located throughout Europe, Asia and Latin America, including Brazil, where it is a major retailer.
- The Complainant operates under its CARREFOUR trademark, for which it has obtained registrations with jurisdictions throughout the world, including International and European Union trademark registrations. The Complainant also conducts business through its domain names and .
- The disputed domain name, , is confusingly similar to the Complainant’s CARREFOUR trademark. The mark is contained completely within the disputed domain name and combined with the generic phrase, “clube de ofertas”. That phase can be translated from Portuguese to English to mean “Club of Offers”. As that phrase may pertain easily to the Complainant’s operations conducted under its trademark, the phrase offers no meaningful distinction in evaluating the similarity between the disputed domain name and said trademark.
- The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is in no way affiliated with the Complainant, and the Complainant has not granted the Respondent authorization or permission to use the CARREFOUR mark for any purpose. The disputed domain name previously resolved to an “under construction” webpage, but is attached to an email server. Neither condition constitutes “a bona fide offering of goods and services” or “a legitimate noncommercial or fair use” of the name.
- The Respondent has failed to respond to the Complainant’s cease-and-desist letter, despite several reminders issued by the Complainant. However, after the letter was sent, the webpage connected to the disputed domain name dropped the “under construction” notice in favor of providing sponsored links to the websites of third-parties that offer goods and/or services that compete with those offered by the Complainant.
-The disputed domain name was registered and is being used in bad faith. Given its fame, the Complainant and its mark were well-known by the Respondent. In any event, a quick Internet search would have revealed the ownership of that mark to the Respondent. The attachment of email services to the disputed domain name indicates that the Respondent is likely to engage in efforts to operate a phishing scheme through that name. Moreover, steering Internet users for profit to sponsored links constitutes bad faith use of the disputed domain name. Finally, the Respondent is attempting to prevent the Complainant from using its mark in that name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraphs 4(a)(i) - (iii) of the Policy, the Panel may rule for the Complainant and grant transfer of the disputed domain name, , if the Complainant demonstrates that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
As the Panel has been supplied with pertinent evidence by the Complainant of its International and European Union trademark registrations for the CARREFOUR mark, the Panel concludes that the Complainant has sufficient rights in that mark to satisfy the requirements of Policy paragraph 4(a)(i). The Panel notes that prior UDRP panels have reached the same conclusion with respect to the Complainant’s rights in said trademark. See, for example, Carrefour v. Yujinhua,WIPO Case No. D2014-0257 (“The trademark CARREFOUR is registered by the Complainant in multiple jurisdictions and the Complainant accordingly enjoys trademark rights therein.”); and Carrefour S.A. v. Patrick Demestre,WIPO Case No. D2011-2248 (“The Complainant has submitted evidence demonstrating that it is the owner of the registered trademark Carrefour.”).
Clearly, the disputed domain name, , is not identical to the Complainant’s CARREFOUR trademark. However, the disputed domain name does contain the mark in its entirety. The lengthy Portuguese phrase in the name, “clube de ofertas”, which precedes the mark, translates in English to mean “club of offers”. The Panel agrees with the Complainant’s contention that the phrase might relate directly to the Complainant’s business of “offering” retail food products to the public. Consequently, the Panel determines that the disputed domain name could easily lead to confusion among Internet users as to whether the corresponding website is connected with the Complainant and its CARREFOUR mark. Moreover, the inclusion of the gTLD, “.com”, fails to add any meaningful distinction between the name and the mark in the Panel’s view. Therefore, the Panel believes that the disputed domain name is confusingly similar to that trademark. See, Honda Motor Co., Ltd. v. Gustavo Henrique Rodrigues Pacheco, Producoes,WIPO Case No. D2017-1770, (concluding that the disputed domain name, , is confusingly similar to the trademark HONDA); AB Electrolux v. Pham Van, CTY TNHH Thuong Mai Dich Vu Dien Lanh Viet Thai,WIPO Case No. D2016-2417 (finding to be confusingly similar to the ELECTROLUX mark); and L’Oréal v. Tina Smith,WIPO Case No. D2013-0820 (“It is well established in previous UDRP cases that the added of top-level domains – being a required element of every domain name – is irrelevant when assessing whether or not a mark is identical or confusingly similar.”).
Accordingly, the Panel finds that the Complainant has shown that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant contends that it neither is affiliated with the Respondent nor has granted the Respondent authorization or permission to use the CARREFOUR trademark. Furthermore, the Panel has found that the disputed domain name is confusingly similar to that mark. Having thus made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, the Complainant shall prevail as to this Policy element unless there is evidence submitted by the Respondent, or present otherwise in the record, to rebut that prima facie case. See, OSRAM GmbH. v. Mohammed Rafi/Domain Admin, Privacy Protection Service INC d/b/a PrivacyP,WIPO Case No. D2015-1149 (“...the consensus view is that paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing.”); and Groupe Auchan v. Roberto La Palombara,WIPO Case No. D2014-0660.
Since the Respondent has submitted no evidence in this case, the Panel shall examine the Complaint ― taking as true all of its reasonable contentions ― in the context of Policy paragraph 4(c) to determine whether there exists any rationale upon which to base a successful rebuttal to the prima facie case made by the Complainant. See, Lonsdale Sports Limited v. Holger Doelle,WIPO Case No. D2016-1140 (“...the consensus view of UDRP panelists is that the respondent’s default does not automatically result in a decision in favor of the complainant.”); and RX America, LLC. v. Matthew Smith,WIPO Case No. D2005-0540 (“A respondent is not obliged to participate in a domain name dispute proceeding, but if it were to fail to do so, asserted facts that are not unreasonable would be taken as true...”).
The Panel accepts the contention by the Complainant that the disputed domain name is now used to host a website that furnishes sponsored links to third-party websites which offer products/services that compete with those offered by the Complainant. Moreover, the Complainant asserts, supported by submission of evidence acceptable to the Panel, that the website is connected to an email server which could be used to engage in so-called “phishing”. As the disputed domain name cannot be considered to be a common or generic phrase in any one language, the Panel believes that said uses of that name comply with neither a “bona fide offering of goods or services” per Policy paragraph 4(c)(i) nor a “legitimate noncommercial or fair use” of the name per Policy paragraph 4(c)(iii). See, Mobile Communication Service Inc. v. WebReg, RN,WIPO Case No. D2005-1304 (“The website to which the [disputed] Domain Name resolves...contains links to other sites that offer...services that appear to compete with those offered by Complainant. This type of use is neither a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy nor a legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii).”); and Novartis AG v. James H Park,WIPO Case No. D2017-2355 (“Complainant asserts that an email server has been configured on the Domain Name and, as such, there is a risk that Respondent is engaged in a phishing scheme. Such a phishing scheme cannot be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name.”).
Finally, the Panel perceives no reason to believe that the Respondent, Eliza Maria, has ever been commonly known as . As a result, the Panel concludes that Policy paragraph 4(c)(ii) is also inapplicable to these proceedings.
Since the Panel has failed to detect from the record any reasonable rebuttal to the Complainant’s prima facie case, it must stand.
Accordingly, the Panel finds that the Complainant has shown that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
As has been noted by several prior Policy panels, the Complainant’s CARREFOUR mark is famous throughout the world, and any registration and use of it in a domain name by an unaffiliated or non-licensed party would be most certainly in bad faith. The Panel agrees with that reasoning and concludes that the disputed domain name was registered and is being used in bad faith. See, Carrefour v. VistaPrint Technologies Ltd.,WIPO Case No. D2015-0769 (“The Panel accepts that the CARREFOUR mark is widely known and famous...There is substantial authority that registration of a domain name that is confusingly similar to a well-known trademark by any entity that has no relationship to that mark is itself sufficient evidence of bad faith registration and use.”); and Carrefour S.A. v. Patrick Demestre, supra (“The Panel shares the view that the registration of a domain name that is confusingly similar or identical to a well-known trademark by any entity that does not have a relationship to that mark may be evidence of bad faith registration and use...[B]oth the company Carrefour and the CARREFOUR trademark are well-known...”).
Moreover, the disputed domain name is used currently to host a website that provides sponsored links to third-party websites offering goods/services of the Complainant’s competitors. The Panel concludes that this use facilitates commercial gain for the Respondent based upon pay-per-click links and likely confusion between the disputed domain name and the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. Thus, such use falls under Policy paragraph 4(b)(iv) with respect to bad faith registration and use of the disputed domain name. See, Fontem Holdings 4, B.V. v. J- B-, Limestar Inc.,WIPO Case No. D2016-0344 (“The Panel further finds that the Respondent’s use of the Domain Name to resolve to a parking page containing sponsored links constitutes bad faith...in accordance with paragraph 4(b)(iv) of the Policy.”); and Cards Against Humanity, LLC v. yang qi / Domain Administrator, PrivacyG,WIPO Case No. D2015-0456 (“The Panel finds that the Respondent is directing Internet users to competing service offerings and a pay-per-click website, which means that the Respondent is using the Complainant’s trademark to create confusion among Internet users to attract visitors to the Respondent’s website for commercial gain as per paragraph 4(b)(iv) of the Policy.”).
Finally, the Panel concurs with the Complainant that the connection of the disputed domain name with an email server configuration suggests that the Respondent intends to engage in an illegitimate “phishing scheme” to lure and victimize unsuspecting Internet users. In accordance with reasoning by prior Policy panels, the Panel determines that such action is consistent with bad faith registration and use of the disputed domain name. See, Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records,WIPO Case No. D2017-2533; and Accor SA v. Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyP / Yogesh Bhardwaj,WIPO Case No. D2017-1225.
Accordingly, the Panel finds that the Complainant has shown that the disputed domain name was registered and is being used 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.
Dennis A. Foster
Sole Panelist
Date: March 14, 2018
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