The Complainant is MONOPRIX of Clichy, France, represented by Watrin Brault Associés, France.
The Respondent is Domain Administrator, See PrivacyG of Phoenix, Arizona, United States of America / Ashok Chand of Faridabad, India. 2. The Domain Name and Registrar
The disputed domain name is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 16, 2018. On November 16, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 16, 2018, 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 19, 2018 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 23, 2018.
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, and the proceedings commenced on December 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 27, 2018.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on January 14, 2019. 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 a French commercial enterprise specialized in the sale and distribution of food, cosmetics, textiles and other products, both online and in stores. The Complainant has been operating for more than 40 years, and the name “Monoprix” has been its registered company name since 1971. The MONOPRIX trademark was registered (registration number 3658321) with the French Institut National de la Propriété Industrielle, in numerous classes, on June 18, 2009, and this registration has been subsequently renewed. In the pursuit of its business the Complainant registered the domain name in October 1996, and this domain name is still active.
Little is known about the Respondent, who on the basis of the information obtained from the registrar appears to be an individual resident in India. The Complainant submits information from Google Street View and Linkedin which suggests that the Respondent may be a Quality UP engineer.
The disputed domain name was registered on July 4, 2018. The disputed domain name resolved to a webpage where the Internet user is invited to answer a “survey” in consideration of a promised EUR 250 check. Currently, the disputed domain name does not resolve to any active webpage. 5. Parties’ Contentions A. Complainant
The Complainant asserts that the disputed domain name is identical to the point of causing confusion with its well-known trademark and company name. The Complainant further advances that the Respondent does not and cannot have any rights or legitimate interests in the disputed domain name and, to the contrary, has been using the disputed domain name for fraudulent and illegitimate purposes, notably pretending to be the Complainant in order to obtain Facebook data from Internet users. Thereupon the Complainant alleges that the disputed domain name was both registered and used in bad faith, notably by making an unauthorized use of the Complainant’s trademark in order to attract and take advantage of Internet users. On October 4, 2018 the Complainant’s lawyer sent an email complaining of the Respondent’s practices and unauthorized use of the Complainant’s trademark, but received no reply.
The Complainant requests that the disputed domain name be transferred to it. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name begins with and contains the entirety of the Complainant’s trademarked company name, which is well known in France. The additional of the suffix “-gratuit” does not diminish the confusing similarity with the Complainant’s trademark, and arguably increases it, as “gratuit"in French means “free” in English, thus suggesting to Internet users that MONOPRIX is offering free products or services.
The element of paragraph 4 (a)(i) of the Policy is accordingly here demonstrated and proven. B. Rights or Legitimate Interests
The Complaint makes clear that the Complainant has not authorized or in any way licensed the Respondent to use its trademark, and convincingly alleges that the Respondent’s actual use of the same has been fraudulent. The Complaint and its annexes explain a scheme whereby the disputed domain name resolves to a webpage where the Internet user is invited to answer a phoney “survey” in consideration of a promised EUR 250 check. The purpose of this survey is, the Complaint explains, to “phish” for the user’s Facebook data.
While this activity is clearly not a demonstration of rights or legitimate interests it is even more relevant to bad faith use, as discussed in the following section of this decision.
The Respondent is obviously not known as “Monoprix-gratuit”, nor is there here any indication that the Respondent was using, or could use, the disputed domain name in connection with any bona fide offering of goods and services.
It is well established in UDRP decisions that a complainant needs to establish at least a prima facie case that the respondent has no rights or legitimate interests in respect of the disputed domain name. See Section 2.1, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition; accord, Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Where such a prima facie case is made, the burden shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the Policy. See also, Meizu Technology Co., Ltd. v. “osama bin laden”,WIPO Case No. DCO2014-0002; H & M Hennes & Mauritz AB v. Simon Maufe, Akinsaya Odunayo Emmanuel and Nelson Rivaldo,WIPO Case No. D2014-0225.
As the Complainant has here asserted at least such a prima facie case, and there is nothing in the case file that would rebut or contradict it, the Complainant has met its burden of proof under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The disputed domain name was registered long after the Complainant’s company and commercial name, MONOPRIX, was well known in retail and online sales, and some 10 years after the Complainant registered its trademark. The choice of the disputed domain name can hardly be accidental or serendipitous. Rather it was obviously chosen with a goal of profiting from the notoriety and goodwill of the Complainant’s name and trademark by attracting Internet users who recognized it. The addition of the suffix “gratuit” further demonstrates this, as it is obviously placed in the disputed domain name in order to entice the Complainant’s largely French-speaking client base with a suggestion of free goods or services.
The use of the disputed domain name, as documented by the Complainant and described in section 6 B., above, demonstrates a bad faith use of the Complainant’s well-known trademark to attract Internet users with the promise of a EUR 250 check. It is, moreover, difficult on the facts here to conceive of any good faith use to which the Respondent could make of the disputed domain name. See Carrefour v. Saran Malki and Patrice Laura,WIPO Case No. D2017-2265.
It follows from the above that the elements of paragraph 4(a)(iii) if the Policy are here proven. 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.
Nicolas Ulmer
Sole Panelist
Date: January 22, 2019
Full & Egal Universal Law Academy