Complainant is GEIMEX, a French Société Anonyme of Paris, France, represented by Cabinet Sarrut Avocats, France.
Respondent is Sulman Rasheed, SRK Communication of Rawalpindi, Pakistan. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 15, 2018. On May 15, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 16, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on May 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 13, 2018. The Center received email communications from Respondent on May 30, 2018 and June 7, 2018. On June 14, 2018, the Center notified the Parties of the commencement of the panel appointment process.
The Center appointed Mark Partridge as the sole panelist in this matter on June 19, 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
Complainant is a French distributor and operates discount retail stores in France. It is the owner of the registered mark LEADER PRICE and has a valid trademark registration for LEADER PRICE in many countries, including Pakistan, where Respondent is located. The mark was registered in Pakistan on October 10, 2011.
Respondent is the owner of the disputed domain name, . According to Complainant and Respondent's website, "cnc" refers to "cash and carry", which refers to a service provided by distributors. The disputed domain name was registered on December 18, 2017.
Before this Complaint was filed with the Center, Complainant sent an email to Respondent on September 8, 2016, requesting that it transfer the disputed domain name to Complainant. According to the case file, Respondent never replied to Complainant's email.
On May 30, 2018, Respondent replied to an email from the Center, in which Respondent claimed that he did not own the disputed domain name and that he created the website for a client. Respondent offered to delete the website but claimed that it had no power over the disputed domain name. The Center proceeded to appoint the Panel after no reaction to this was submitted by Complainant requesting suspension and/or signaling a possible settlement. 5. Parties' Contentions A. Complainant
Complainant contends that it owns rights in the mark LEADER PRICE; that the disputed domain name is confusingly similar to its mark; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and used in bad faith to reap commercial gain based on confusion with Complainant's mark.
Complainant requests that the disputed domain name be cancelled. B. Respondent
Respondent did not reply to Complainant's contentions, except as noted above. 6. Discussion and Findings
Paragraph 14(b) of the Rules states that:
"If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate."
This Panel finds that Respondent has been afforded a fair opportunity to present its case, so the Panel will proceed to a decision on the Complaint. Respondent's default does not automatically result in a decision in favor of Complainant. Complainant is still required to prove each of the three elements required under paragraph 4(a) of the Policy:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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 by Respondent in bad faith.
Here, since Respondent has defaulted with regards to Complainant's contentions, it is therefore appropriate to accept the facts asserted by Complainant and to draw adverse inferences of fact against Respondent. A. Identical or Confusingly Similar
Complainant has demonstrated that it owns registered trademark rights in LEADER PRICE. Respondent uses Complainant's mark in full as the initial part of the disputed domain name. The addition of "cnc" in the disputed domain name is insufficient to avoid confusion; it is also noted that "cnc" means "cash and carry" and denotes a kind of service provided by a distributor.
Accordingly, the disputed domain name is confusingly similar to a mark in which Complainant has rights. B. Rights or Legitimate Interests
Under the second element of paragraph 4(a) of the Policy, a complainant is required to present a prima facie case that the respondent lacks rights of legitimate interests in the domain name. After a complainant has made a prima facie case, the burden of production shifts to the respondent to present evidence demonstrating rights or legitimate interests in the domain name. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
Paragraph 4(c) of the Policy instructs that rights and legitimate interests can be demonstrated by Respondent if:
"(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."
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name. Complainant further asserts that Respondent's website was created well after Complainant registered their mark for LEADER PRICE. Complainant has also showed that they have put Respondent on notice to withdraw their domain name and to stop using Complainant's mark.
Respondent has neither presented any evidence to rebut Complainant's assertions nor shown that it has made a bona fide offering of goods or services under the domain name, holds any trademark registrations relating to that name, or is generally known by that name. Further, Respondent has not shown that it is making fair or noncommercial use of the domain name.
Therefore, the Panel concludes that Respondent lacks any right or legitimate interest in the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states the following as a circumstance that shall be considered evidence of the registration and use of a domain name in bad faith:
"(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."
Complainant argues that the circumstances support a finding that Respondent registered the disputed domain name in bad faith. They assert that Respondent is using the disputed domain name to intentionally attract Internet users for commercial gain by creating a likelihood of confusion with Complainant's mark.
The record supports Complainant's assertions. Complainant has provided evidence of their registered mark LEADER PRICE and has shown that Respondent used the mark after the registration date on the website at the disputed domain name without Complainant's permission to display information and pictures of/links to goods purportedly offered for purchase much in the same style as Complainant's official website (i.e., effectively a copycat website). It appears more likely than not that Respondent registered and used the disputed domain name in a deliberate attempt to attract Internet users to its site for commercial gain based on confusion with Complainant's mark.
Once again, Respondent has not presented any evidence to rebut Complainant's assertions and has therefore failed to show that the domain name was not registered and used in bad faith.
Thus, the Panel concludes that the disputed domain name was registered and 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 cancelled.
Mark Partridge
Sole Panelist
Date: July 3, 2018
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