The Complainant is Association des Centres Distributeurs E. Leclerc, France, represented by Inlex IP Expertise, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / auchanlove auchanlove, Malaysia. 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 6, 2021. On January 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 7, 2021, 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 28, 2021 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 February 1, 2021. 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 February 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 28, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on March 15, 2021. The Center appointed Dennis A. Foster as the sole panelist in this matter on March 24, 2021. 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 Based in France, the Complainant operates hundreds of supermarkets and hypermarkets located there and in several other European countries. The Complainant conducts its business under the E LECLERC mark, which is registered with the European Union Intellectual Property Office (“EUIPO”) (e.g., Registration No. 002700664; registered on January 31, 2005). The disputed domain name, - Based in France for nearly 70 years, the Complainant owns and operates supermarkets and hypermarkets. 721 of the Complainant’s stores are in France, and there are about 100 such stores in other European countries. The Complainant accounts for more than 20% of the relevant market in France, with revenue of EUR 48.2 billion in 2019 and approximately 133,000 employees. - The Complainant sells its goods under its E LECLERC mark, which is well known throughout Europe and which comes from the name of the Complainant’s founder, Mr. Edouard Leclerc. The Complainant has registered the mark with the EUIPO. - The disputed domain name, - The Respondent has no rights or legitimate interests in the disputed domain name. There is no business relationship between the Complainant and the Respondent, and the Complainant has not authorized, permitted or licensed the Respondent to use the E LECLERC mark. Also, there is no evidence that the Respondent, who appears to be using a phony name, is commonly known as the disputed domain name. - The disputed domain name resolved to a website that contained the Complainant’s plain and stylized mark, making it appear erroneously that the website was operated by the Complainant. Moreover, the website requested that Internet users submit various personal and credit card information should they request a refund pertaining to previously purchased merchandise. That usage is consistent with neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Instead, the Respondent appeared to be engaged in a fraudulent phishing scheme. - The disputed domain name was registered and is being used in bad faith. The Complainant’s mark is famous in France and in several European countries, so it is implausible that the Respondent was unaware of the Complainant or its mark. Also, the Respondent has used a combination of privacy services and a fanciful name, “Auchanlove” (based on an actual French company, “Auchan”, which is not related to the disputed domain name), in registering the disputed domain name in order to hide its real identity. Moreover, the website attached to the disputed domain name was designed to allow the Respondent to conduct illegitimate phishing and email solicitations. The latter actions were intended to cause bad faith disruption to the Complainant’s operations. - The Complainant sent a demand to the Registrar in order to obtain the deactivation of the website at the disputed domain name (Annex 7 of the Complaint). Following this request, the website was deactivated (Annex 8 of the Complaint). B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In accordance with paragraphs 4(a)(i) - (iii) of the Policy, the Panel may find for the Complainant and grant a transfer of the disputed domain name, - The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and - 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. A. Identical or Confusingly Similar Because the Complainant has supplied evidence of its trademark registration with the EUIPO for the E LECLERC mark, the Panel finds that the Complainant has the necessary rights in that mark for the purposes of Policy paragraph 4(a)(i). See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.2.1; and Adventia Pharma, S.L. v. Super Privacy Service LTD c/o Dynadot LLC / bilal bal,WIPO Case No. D2020-1592 (“The Complainant has demonstrated rights in the PERMEACARE trademark through its registration in the EUIPO.”). In comparing the disputed domain name, Accordingly, the Panel finds that the Complainant has proved that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The consensus of prior Policy panels is that a complainant need present only a prima facie case that a respondent has no rights or legitimate interests in a disputed domain name, and then the burden of evidence production falls on that respondent to furnish evidence that it does possess those rights or interests. See, WIPO Overview 3.0, section 2.1; and OSRAM GmbH. v. Mohammed Rafi/Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org,WIPO Case No. D2015-1149 (“...once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in a disputed domain name.”). The Complainant has successfully shown that the disputed domain name is identical to its valid trademark and asserted forcefully that it has not authorized, permitted or licensed the Respondent to use that mark for any legitimate purpose. The Panel finds that those circumstances create a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. As the Respondent failed to file a Response, the Panel will rely on the reasonable assertions presented in the Complaint to determine whether there is a possible rebuttal to the Complainant’s prima facie case. See, OSRAM GmbH. v. Mohammed Rafi/Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, supra (“The Respondent has not submitted a response to the Complaint, in the absence of which the Panel may accept all reasonable inferences and allegations in the Complaint as true.”). The Complainant contends, supported by evidence (Annex 6 of the Complaint), that the disputed domain name resolved to a website that mimicked the Complainant’s own website (containing the Complainant’s stylized trademark) and offered an inducement for Internet users to present personal contact and credit card information to gain potential refunds relating to merchandise bought from the Complainant. The Panel concludes that this use does not constitute “a bona fide offering of goods or services” as would comport with the requirements of Policy paragraph 4(c)(i). Instead, in agreement with the Complainant, the Panel believes that this usage is more than likely an illegitimate attempt to phish for Internet user personal information, consistent with a fraudulent intent on the part of the Respondent. See, Wesco Aircraft Hardware Corp. v. Contact Privacy Inc. Customer 1245095601 / Gulf Guns and Gear,WIPO Case No. D2019-2131 (“...the Panel finds [the] that purpose of registering the [disputed] Domain Name was to engage in an email scam or a phishing scheme, none of which is a bona fide offering of goods or services.”); and CMA CGM v. Diana Smith,WIPO Case No. D2015-1774 (“...such phishing scam cannot be considered a bona fide offering of goods or services...”). With respect to Policy paragraph 4(c)(ii), the Panel agrees with the Complainant that the name of the Respondent, as presented on the disputed domain name WhoIs registration material, provides no evidence that the Respondent has been commonly known as the disputed domain name. Finally, since use of the disputed domain name for phishing schemes, as described above, appears to be neither legitimate, noncommercial nor fair, the Panel concludes that Policy paragraph 4(c)(iii) is not applicable either. Subsequently, the disputed domain name resolved to a website that stated, “This Account has been suspended” and currently resolves to an error page. Given the complete inapplicability of Policy paragraph 4(c) to this case, and there being no other discernible evidence to support a rebuttal, the Panel determines that the Complainant’s prima facie case must prevail. Accordingly, the Panel finds that the Complainant has proved that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Panel finds that the Complainant’s mark is well known and thus was known by the Respondent prior to its registration of the disputed domain name. See, Association des Centres Distributeurs E. Leclerc - A.C.D Lec v. Domain Administrator, See PrivacyGuardian.org / cunshuo zhang,WIPO Case No. D2019-1580 (“Given the distinctiveness of the Complainant’s trademark and reputation, the Panel agrees with the Complainant’s claims that the Respondent has registered the Domain Name with full knowledge of the Complainant’s trademark LECLERC...”). Moreover, as noted above, the Panel has concluded that the Respondent registered and has used the disputed domain name for illegitimate, and likely fraudulent, phishing schemes directed at obtaining Internet user personal information. Finally, the Panel accepts the Complainant’s contention that the privacy services/names used by the Respondent as registrant of the disputed domain name are deliberately misleading as to the actual identity of the Respondent. Taken together, all of these circumstances lead the Panel to conclude that the Respondent has registered and used the disputed domain name in bad faith. See, Kimley-Horn and Associates, Inc. v. Abrahim Hashim,WIPO Case No. DCO2019-0017 (“The registration of a domain name in furtherance of phishing scams supports a finding of bad faith registration and use.”); and BHP Billiton Innovation Pty Ltd v. Domains By Proxy LLC / Douglass Johnson,WIPO Case No. D2016-0364 (“...the use of an email address associated with the disputed domain name, to send a phishing email for the purposes of dishonest activity is in itself evidence that the disputed domain name was registered and is being used in bad faith.”); and H & M Hennes & Mauritz AB v. Domain Admin, Private Registrations Aktien Gesellschaft / Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyProtect.org,WIPO Case No. D2017-0491 (“the Panel views both the persistent use of proxy services and seemingly false names in the chain of title of the disputed domain name [...] as evidence of bad faith registration.”). The fact that the disputed domain name subsequently resolved to a website that stated, “This Account has been suspended” and currently resolves to an error page does not prevent a finding of bad faith. Accordingly, the Panel finds that the Complainant has proved that the disputed domain name was 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, Dennis A. Foster
Sole Panelist
Date: April 7, 2021
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