Complainant is Carrefour of Massy, France (“Complainant”), represented by Dreyfus & associés, France.
Respondent is rabie nolife of Madrid, Spain (“Respondent”). 2. The Domain Name and Registrar
The disputed domain name is registered with 10dencehispahard, S.L. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2019. On March 26, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 1, 2019, 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 Complainant on April 2, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 5, 2019 (hereinafter, the “Complaint”).
The Center sent an email communication to the parties on April 2, 2018 regarding the language of the proceeding, as the Complaint was submitted in English and the language of the registration agreement for the disputed domain name is Spanish. The Complainant submitted a request for English to be the language of the proceeding on April 5, 2019. The Respondent did not submit any communication regarding 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 Respondent of the Complaint, and the proceedings commenced on April 8, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 28, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 29, 2019.
The website of the Registrar displays its registration agreements in both English and Spanish.
The Center appointed Scott Donahey as the sole panelist in this matter on May 3, 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
Complainant, a company headquartered in France, operates more than 12,300 retail outlets and e-commerce sites in more than 30 countries, employs more than 370,000 people worldwide, and generated 88.24 billion euros in sales in 2017. Complainant serves more than 104 million customers on a daily basis. Complainant also offers financial and insurance services. Complainant furnishes credit cards under the Pass tradename. Complaint, Annex 3.
Complainant is the owner of European trademarks for CARREFOUR, issued at least as early as August 30, 2007. It is the owner of an international trademark for CARREFOUR PASS, No. 719166, issued on August 18, 1999. Complaint, Annex 4. Complaint also employs domain names based on those trademarks in its e-commerce business. For example, was registered on October 25, 1995. Complaint, Annex 5.
Respondent registered the disputed domain name on December 20, 2018. Complaint, Annex 1. The disputed domain name is not being used to resolve to an active web site.
Complainant is a French company and is not conversant with the Spanish language. In order to conduct this proceeding in Spanish, Complainant would have to hire a translation service, which would possibly more than double its costs in this proceeding. As English is the primary language for international relations, Complainant requests that the language of the present proceedings be English. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to Complainant’s trademarks. Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name in that Complainant has not authorized Respondent to utilize its trademarks in any way, Respondent is not affiliated with Complainant, Complainant’s trademarks were registered and being used long before Respondent registered the domain name at issue, and that no use is being made of the disputed domain name, nor can any legitimate use be made of the disputed domain name. Complainant asserts that the disputed domain name has been registered and is being used in bad faith, since Respondent must have known of Complainant’s well known trademarks at the time it registered the disputed domain name and there is no conceivable legitimate use to which the disputed domain name could be put. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.” A. Language of the Proceedings
The Panel finds that as the Registrar posted its Rules on its web site in both English and Spanish, as the Center notified Respondent of the proceedings in both English and Spanish, as Respondent failed to respond to such notice and invitation to file a response in the proceedings, as Complainant is not conversant with the Spanish language and would have to incur significant additional cost in the proceedings if it were required to proceed in the Spanish language, and as English is the primary language in which international commerce is conducted, the proceedings will be conducted in the English language. B. Identical or Confusingly Similar
The disputed domain name consists of Complainant’s well-known trademarks CARREFOUR and CARREFOUR PASS, and the Spanish word “financieros” which in the Spanish language indicates one of the businesses in which Complainant is engaged (financial), with hyphens separating the words. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s well-known trademarks. C. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, as also described above, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. D. Registered and Used in Bad Faith
Respondent has registered the disputed domain name which clearly and unmistakably includes Complainant’s well-known marks. The fact that Respondent is not currently using the disputed domain name to resolve to an active web site still constitutes bad faith registration and use where there is no conceivable legitimate use to which the domain name could be put. Tesla Corporation Limited v. Nuclear Marshmallows,WIPO Case No. 2000-0003. Therefore, the Panel finds that the disputed domain name has been 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 Complainant.
Scott Donahey
Sole Panelist
Date: May 7, 2019
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