The Complainant is Carrefour, France, represented by Dreyfus & associés, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Sanny Biori, United States of America. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2020. On January 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 16, 2020, 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 January 17, 2020 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 January 21, 2020. The Center verified that the Complaint 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 January 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 10, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 11, 2020. The Center appointed Tobias Malte Müller as the sole panelist in this matter on February 20, 2020. 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 retail group with its headquarters that employs more than 360,000 people worldwide. It operates more than 12,000 stores and e-commerce sites in more than 30 countries generating EUR 84.91 billion sales including VAT in 2018. It results from the evidence provided by the Complainant that the latter owns multiple trademark registrations incorporating its CARREFOUR trademark, including European Union trade marks CARREFOUR No. 005178371 (filed on June 20, 2006 and registered on August 30, 2007, duly renewed, covering goods and services in classes 9, 35 and 38), and No. 008779498 (filed on December 23, 2009, registered on July 13, 2010, duly renewed, covering services in class 35). The Respondent registered the disputed domain name on November 14, 2019. Finally, it results from the Complainant’s documented allegations that the disputed domain name currently redirects towards the Complainant’s official Italian website. On January 6, 2020, Complainant sent a cease-and-desist letter to the privacy shield service, via email requesting Respondent to provide the identity as well as the contact details of the registrant and to transfer the disputed domain name to Complainant. However, despite several reminders the Complainant did not receive any response. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s trademark CARREFOUR. The disputed domain name It further results from the Complainant’s undisputed contentions that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Respondent is not commonly known by the disputed domain name or by the name CARREFOUR. Furthermore, the Respondent is neither affiliated with the Complainant in any way, nor has it been authorized by the Complainant to use and register its trademark, or to seek registration of any domain name incorporating said trademark. Finally, the Respondent has not made, and is not making, a legitimate noncommercial or fair use of the disputed domain name and has not used the disputed domain name in connection with a bona fide offering of goods or services. Indeed, the disputed domain name redirects to the Complainant’s official Italian website. In addition, two email servers have been configured on the disputed domain name and the Complainant therefore sees a risk that the Respondent is engaged in a phishing scheme. Finally, the Complainant contends that the Respondent registered and uses the disputed domain name in bad faith. According to the Complainant’s undisputed allegations, it is implausible that the Respondent was unaware of the Complainant when he registered the disputed domain name, since the CARREFOUR trademark is well-known throughout the world. Taking into account the worldwide reputation of Complainant and its trademark, as well as the high level of notoriety of the Complainant, it is hard for the Complainant to believe that the Respondent was unaware of the existence of the Complainant and its trademark at the time of registration of the disputed domain name. The Complainant further contends that the composition of the disputed domain name, which imitates the Complainant’s trademark CARREFOUR, indicates that the Respondent knew about the Complainant. In fact, in the Complainant’s view, bad faith can be inferred where a domain name is so obviously connected with a well-known trademark that its very use by someone with no connection to the trademark suggests opportunistic bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs this Panel to “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 requires a complainant to prove each of the following three elements in order to obtain an order that the disputed domain name be transferred or cancelled: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the 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 in bad faith. The Panel will therefore proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied. A. Identical or Confusingly Similar Pursuant to paragraph 4(a)(i) of the Policy, the Complainant must, first of all, establish rights in a trademark or service mark and, secondly, establish that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. It results from the evidence provided that the Complainant is the owner of several registered trademarks consisting of the term CARREFOUR, including European Union trade marks CARREFOUR No. 005178371 (filed on June 20, 2006 and registered on August 30, 2007, duly renewed, covering goods and services in classes 9, 35 and 38) and No. 008779498 (filed on December 23, 2009, registered on July 13, 2010, duly renewed, covering services in class 35). Many UDRP panels have found that a disputed domain name is confusingly similar to a complainant’s trademark where the disputed domain name incorporates the complainant’s trademark in its entirety (e.g., “Dr. Martens” International Trading GmbH and “Dr. Maertens” Marketing GmbH v. Elliot Elliot,WIPO Case No. D2018-0213; F. Hoffmann-La Roche AG v. Jason Barnes, ecnopt,WIPO Case No. D2015-1305; Compagnie Générale des Etablissements Michelin v. Christian Viola,WIPO Case No. D2012-2102; Volkswagen AG v. Nowack Auto und Sport - Oliver Nowack,WIPO Case No. D2015-0070; The Chancellor, Masters and Scholars of the University of Oxford v. Oxford College for PhD Studies,WIPO Case No. D2015-0812; Rhino Entertainment Company v. DomainSource.com, Inc.,WIPO Case No. D2006-0968; SurePayroll, Inc. v. Texas International Property Associates,WIPO Case No. D2007-0464). This Panel shares this view and notes that the Complainant’s registered trademark CARREFOUR is fully included in the disputed domain name. Finally, it is the view of this Panel that adding the letter “l” to the disputed domain name does not avoid the confusing similarity between the disputed domain name and the Complainant’s trademark, in particular regarding its wording and pronunciation. Moreover, this Panel emphasizes that the case at hand is a typical case of “typosquatting”, which occurs when one letter is replaced by another or added in a domain name. According to the consensus view of UDRP panels, a domain name which contains a common or obvious misspelling of a trademark normally is found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name (see Wachovia Corporation v. Peter Carrington,WIPO Case No. D2002-0775; Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings,WIPO Case No. D2004-0971; Humana Inc. v. Cayman Trademark Trust,WIPO Case No. D2006‑0073; Edmunds.com, Inc. v. Digi Real Estate Foundation,WIPO Case No. D2006-1043; Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator,WIPO Case No. D2008-1302; DD IP Holder LLC v. Registrant [923455] / Domain Administrator,WIPO Case No. D2009-0271; S.A.C.I. Falabella v. Hector Ramirez,WIPO Case No. DCO2015-0012). This is the case in the dispute at issue. In the light of the above, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests Pursuant to paragraph 4(a)(ii) of the Policy, the Complainant must secondly establish that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interests to the disputed domain name. In the Panel’s view, based on the undisputed allegations stated above, the Complainant has made a prima facie case that none of these circumstances are found in the case at hand and, therefore, that the Respondent lacks rights or legitimate interests in the disputed domain name. First, the Panel notes that there is no evidence in the record or WhoIs information showing that the Respondent might be commonly known by the disputed domain name in the sense of paragraph 4(c)(ii) of the Policy. Furthermore, it results from the Complainant’s non-contested evidence that the disputed domain name resolves to the Complainant’s own Italian website while two email servers have been configured on the disputed domain name. Since this use is clearly commercial, it cannot be considered a legitimate, noncommercial or fair use of the disputed domain name pursuant to paragraph 4(c)(iii) of the Policy. Finally, such use cannot be qualified a bona fide offering of goods or services in accordance with paragraph 4(c)(i) of the Policy. According to the Complaint, which has thus remained unchallenged, the Complainant has not authorized the Respondent’s use of the trademarks CARREFOUR, e.g. by registering a domain name comprising said trademark entirely but adding a typo and redirecting this typo domain name to the Complainant’s own Italian website. It is acknowledged that once the Panel finds such prima facie case is made, the burden of production shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. Since the Respondent in the case at hand failed to come forward with any allegations or evidence, this Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant is therefore deemed to have satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith According to paragraph 4(a)(iii) of the Policy, the Complainant must thirdly establish that the disputed domain name has been registered and is being used in bad faith. The Policy indicates that certain circumstances specified in paragraph 4(b) of the Policy may, “in particular but without limitation”, be evidence of the disputed domain name’s registration and use in bad faith. In addition to these specific circumstances resulting from the Policy, Panels have applied a range of further considerations in assessing bad faith. In particular, 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, 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 (see section 3.2.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Complainant’s trademarks are well known as it has been recognized by previous decisions under the Policy (See Carrefour v. Jose Gaudet,WIPO Case No. D2018-2864; Carrefour v. Jane Casares, NA,WIPO Case No. D2018-0976; Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records,WIPO Case No. D2017-2533; Carrefour v. Tony Mancini, USDIET Whoisguard, Inc,WIPO Case No. D2015-0962; Carrefour v. VistaPrint Technologies Ltd.,WIPO Case No. D2015-0769; Carrefour v. Park KyeongSook,WIPO Case No. D2014-1425; Carrefour v. Yunjinhua,WIPO Case No. D2014-0257). In addition, the Panel notes that the disputed domain name entirely contains the Complainant’s trademark and redirects to the Complainant’s Italian website. Therefore, this Panel has no doubt that the Respondent positively knew that the disputed domain name contained the Complainant’s CARREFOUR trademark when it registered that domain name. Registration of the disputed domain name in awareness of the reputed CARREFOUR mark and in the absence of rights or legitimate interests in this case amounts to registration in bad faith (see e.g. Patagonia, Inc. v. Registration Private, Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2019-1409; “Dr. Martens” International Trading GmbH and “Dr. Maertens” Marketing GmbH v. Petra Wirth,WIPO Case No. D2018-0246; KOC Holding A.S. v. VistaPrint Technologies Ltd,WIPO Case No. D2015-1910; The Chancellor, Masters and Scholars of the University of Oxford v. Oxford College for PhD Studies,WIPO Case No. D2015-0812; The Chancellor, Masters and Scholars of the University of Oxford v. Almutasem Alshaikhissa,WIPO Case No. D2014-2100; and Deutsche Lufthansa AG v. Mustermann Max, Muster AG,WIPO Case No. D2015-1320). The above finding of bad faith registration and use is supported by the further circumstances resulting from the case at hand, which are (see sections 3.1, 3.2 and 3.6 of the WIPO Overview 3.0): (i) the evident misspelling of the CARREFOUR trademark in the disputed domain name; (ii) the high degree of distinctiveness and the worldwide reputation of the CARREFOUR trademarks which predate the registration of the disputed domain name; (iii) the Respondent’s failure to submit a Response or to provide any evidence of actual or contemplated good faith use; (iv) the Respondent’s failure to submit a Response to the warning letter sent before these UDRP proceedings have been started; (v) the implausibility of any good faith use to which the disputed domain name may be put; and (vi) the Respondent concealing its identity behind a privacy shield. In the light of the above the Panel finds that the disputed domain name has been registered and is being used in bad faith pursuant to paragraph 4(a)(iii) of the Policy. 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 Tobias Malte Müller
Sole Panelist
Date: March 3, 2020
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