The Complainant is Association des Centres Distributeurs E. Leclerc – A.C.D. Lec., France, represented by Inlex IP Expertise, France.
The Respondent is 冷大哥(Leng Da Ge), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 23, 2020. On June 23, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 6, 2020, the Center informed the Complainant of an ICANN Online Complaint it had filed against the Registrar, as no registrar verification was forthcoming from the Registrar. On July 22, 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 July 22, 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 July 24, 2020. On July 22, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On July 24, 2020, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment. 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 proceeding commenced on July 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 17, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 18, 2020. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 24, 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 A. Complainant The Complainant is an association headquartered in France and the operator of one of the most renowned chains of supermarkets and hypermarkets in France, operating under the trade mark E LECLERC (the “Trade Mark”). The Complainant is the owner of registrations in several jurisdictions for the Trade Mark, including European Union registration No. 002700664, with a registration date of January 31, 2005. The Complainant offers a wide range of goods and services under the Trade Mark, including car rental services and, since late 2019, car pooling services in conjunction with a car pooling company. B. Respondent The Respondent is apparently an individual resident in China. C. The Disputed Domain Name The disputed domain name was registered on February 17, 2020. D. Use of the Disputed Domain Name The disputed domain name was previously resolved to a Chinese language website, with pornographic content, and promoting various mobile applications, for commercial gain (the “Website”). The disputed domain name does not presently resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding. The Complainant requested that the language of the proceeding be English, for the following reasons: (i) the disputed domain name is registered with the top level domain “.com” which is in Roman characters, rather than Chinese letters; (ii) English is the most widely used language in international relations; (iii) the Complainant being based in France and the Respondent being based in China, English is the fairest neutral language for the proceedings; and (iv) the Complainant is unable to communicate in Chinese and would incur considerable expenses in retaining the services of a translator in order to translate the Complaint and the Annexes in Chinese. The Panel would have accepted a response in Chinese, but the Respondent did not file a response and did not file any submissions with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs. The Panel notes that there is no evidence to support the conclusion that the Respondent is not conversant in English, that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2. Substantive Elements of the Policy The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration. The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) together with the French word “covoiturage” meaning “car pooling” – which is notably one of the services offered by the Complainant under its Trade Mark. Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8). The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name was initially used in respect of the Website, for commercial gain; and it is presently not being used. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Given the notoriety of the Complainant and of its Trade Mark; the close similarity between the disputed domain name and the Trade Mark; the lack of any substantiated credible explanation from the Respondent; the Respondent’s use of a privacy service to register the disputed domain name anonymously; the initial use of the disputed domain name, for commercial gain, in respect of the Website; and the subsequent passive holding of the disputed domain name, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time he registered the disputed domain name. For all the foregoing reasons, the Panel concludes 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 Sebastian M.W. Hughes
Sole Panelist
Dated: September 7, 2020
Full & Egal Universal Law Academy