The Complainant is SODEXO, France, represented by Areopage, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Austin Miller, Llyods Limited, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 10, 2020. On April 17, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 19, 2020, 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 April 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 11, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 12, 2020. The Center appointed Peter Burgstaller as the sole panelist in this matter on May 18, 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 one of the largest companies in the world specialized in foodservices and facilities management. It is a company incorporated in France with various subsidiaries around the world. The Complainant has a large portfolio of trademark registrations containing the word SODEXO throughout the world, e.g., the mark SODEXO which is registered as an international trademark for goods and services in classes 9, 16, 35. 36. 37, 38, 39, 40, 41, 42, 43, 44 and 45 for a number of countries including United States registration number 964615, dated January 8, 2008 and the European Union Trade Mark (word) registration number 8346462, dated February 1, 2010. Furthermore, because of the sales and advertisings, businesses and consumers around the world, the SODEXO marks are to be considered as well-known in relation to the goods and services in which the Complainant owns trademark rights. The disputed domain name had been registered in the name of a privacy service. The Registrar has disclosed the name of the underlying Respondent and an address in the United States. The disputed domain name was registered on March 13, 2020; the Complainant’s trademark registrations predate the registration of the disputed domain name by the Respondent. The disputed domain name was being used as a parking page connecting to websites in French. At the time of the decision, the disputed domain name does not resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant is a French company that was founded in 1966; it is one of the largest companies in the world specialized in foodservices and facilities management, with 470,000 employees serving 100 million consumers in 67 countries. The Complainant is listed as one of “The world’s Most Admired Companies” by FORTUNE Magazine. From 1966 to 2008, the Complainant promoted its business under the SODEXHO mark and trade name. In 2008, the SODEXHO mark was simplified to SODEXO. The Complainant is owner of various trademarks throughout the world as well as numerous domain names containing the mark SODEXO as well as SODEXHO. The marks SODEXHO and SODEXO have a strong reputation and are widely known all over the world. The disputed domain name is confusingly similar to the Complainant’s well-established SODEXO trademarks since it only doubles the letter “d”. The Respondent is not affiliated with the Complainant in any way and the Respondent has no rights nor legitimate interests in the disputed domain name as it has no rights in the Complainant’s SODEXO marks as corporate name, trade name, shop sign, mark or domain name that would be prior to the Complainant’s rights. The Respondent was not commonly known by the concerned domain name prior to the adoption and use by the Complainant of the corporate name, business name and mark SODEXO. The Respondent has registered the disputed domain name in bad faith since because of the widespread recognition of the Complainant and its rights in the marks SODEXO throughout the world, it is highly unlikely that the Respondent was unaware of the Complainant and the Complainant’s rights in the SODEXO marks when registering the disputed domain name. The Respondent also uses the disputed domain name in bad faith since it is using the disputed domain name as parking page containing links in French to alcoholic goods and competitor’s of the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, the Complainant must prove that: (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 with respect to the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name almost entirely incorporates and reproduces the Complainant’s trademarks especially the wordmark SODEXO; the disputed domain name only differs from the Complainant’s distinctive and fanciful trademarks inasmuch as it doubles the letter “d”. However, this does not eliminate confusing similarity with the trademarks of the Complainant since the disputed domain name remains visually, aurally, and conceptually highly similar with the Complainant’s trademarks. It has also long been established under UDRP decisions that a generic Top-Level Domain (“gTLD”) such as “.com” cannot typically negate identity or confusing similarity where it otherwise exists, as it does in the present case. When assessing identity or confusing similarity under the first element of the Policy, the gTLD may be ignored. (See section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, previous 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 (see WIPO Overview 3.0, section 2.1). In the present case, the Respondent failed to submit a Response. Considering all of the evidence in the Complaint (especially with regard to the evidence presented by the Complainant in the Complaint) and the Complainant’s contentions that the Respondent has no rights or legitimate interests in the disputed domain name, that the Respondent has no connection or affiliation with the Complainant, and the Respondent has not received any license or consent, express or implied, to use the Complainant’s SODEXO trademarks in a domain name or in any other manner lead the Panel to the conclusion that the Complainant has made out an undisputed prima facie case so that the conditions set out in paragraph 4(a)(ii) of the Policy have been met by the Complainant. C. Registered and Used in Bad Faith As stated in many decisions rendered under the Policy (see Robert Ellenbogen v. Mike Pearson,WIPO Case No. D2000-0001), the Complainant must show that: - the disputed domain name was registered by the Respondent in bad faith, and - the disputed domain name is being used by the Respondent in bad faith. Bad faith registration: Due to the well-known character and reputation of the SODEXO mark, also in the United States where the Respondent is located, it is uncontested for this Panel that the Respondent was aware of the Complainant and its SODEXO mark when registering the disputed domain name. Moreover, the disputed domain name almost entirely reproduces the distinctive and fanciful SODEXO mark, which is in itself highly unlikely without knowledge of the Complainant or its marks. Another aspect is the consensus view of UDRP panels that the practice of typosquatting (“soddexo” instead of “sodexo”) may in itself be evidence of a bad faith registration of a domain name (see WIPO Overview 3.0, sections 1.9 and 3.2.1). Finally, the fact that the Complainant’s trademark rights predate the registration date of the disputed domain name by the Respondent is moreover a strong evidence of bad faith; this is especially true since it is well established by many UDRP decisions that the Complainant’s SODEXO trademarks are well known. In summary, there are no doubts for this Panel that the disputed domain name was registered in bad faith by the Respondent. Bad faith use: The disputed domain name is also being actively used by the Respondent. As can be seen from the evidence put forward by the Complainant, the disputed domain name attracts and redirects Internet users to the Respondent’s parking site and to websites of Complainant’s competitors. The only purpose of that is to achieve commercial gain without showing any rights or legitimate interests in respect of the disputed domain name. This usage of the disputed domain name moreover takes unfair advantage of the Complainant’s SODEXO trademark, creates confusion with the consumers or potential consumers, and interferes with the Complainant’s business. There are no doubts for this Panel that the disputed domain name is being used in bad faith by the Respondent. On the basis of the evidence put forward by the Complainant, it is clear for this Panel that the Respondent has registered and is using the disputed domain name in bad faith, in accordance with 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 Peter Burgstaller
Sole Panelist
Date: June 1, 2020
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