The Complainant is Association des Centres Distributeurs E. Leclerc – A.C.D. Lec, France, represented by Inlex IP Expertise, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Robert Pierre, France. 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 8, 2021. On January 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 8, 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 11, 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 January 13, 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 January 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 3, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 4, 2021. The Center appointed Isabelle Leroux as the sole panelist in this matter on February 15, 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 The Complainant - Association des Centres Distributeurs E. Leclerc - A.C.D. Lec - is a French chain of supermarkets and hypermarkets stores, with about 721 stores in France (as shown by the extracts from the Complainant’s websites “www.e-leclerc.com” and “www.mouvement.leclerc.com” attached as Annex 5 to the Complaint). The Complainant owns several trademark registrations for the trademark LECLERC, in particular the European Union Trade Mark registration for LECLERC, No. 002700656, filed on May 17, 2002 and registered on February 26, 2004 (hereafter the “Trademark”). The Disputed Domain Name The Disputed Domain Name is active and resolves to a parking page with pay-per-click (“PPC”) hyperlinks in relation to the Complainant’s area of business, some of them referring to the Complainant’s business or the Complainant’s competitors. 5. Parties’ Contentions A. Complainant The Complainant considers the Disputed Domain Name to be confusingly similar to a trademark in which it claims to have rights. It further contends that the denomination “leclerc” is highly distinctive and the addition of the name “sodijour” that corresponds to the acronym of the company name of one of the Complainant’s independent storekeepers, “société distribution du point du jour”, does not rule out the likelihood of confusion between the Disputed Domain Name and the Complainant’s Trademark. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. According to the Complainant, it has not authorized, licensed or permitted the Respondent to use any of its trademarks or to apply for domain names and the Respondent is not commonly known under the name “leclerc”. In addition, the use of the Disputed Domain Name as a parking page with hyperlinks for pay-per-click commissions is not in connection with a legitimate interest or fair use. Finally, the Complainant claims that the Disputed Domain Name was registered and is being used in bad faith in a way that may disturb the Complainant’s business. According to the Complainant, the registration of the Disputed Domain Name cannot be a coincidence since the Respondent could not be unaware of the Complainant’s trademarks LECLERC that enjoy a well-known reputation, as well as its activities and organization. The reluctance of the Respondent to reply to the Complainant’s prior cease and desist letter addressed to the Respondent’s email address as displayed on the WhoIs is also an indication of bad faith. The Complainant therefore requests that the Disputed Domain Name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy requires the Complainant to prove each of the following elements in order to obtain relief: (i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and These elements will be examined in turn below. A. Identical or Confusingly Similar The Disputed Domain Name incorporates entirely the Complainant’s Trademark which is typically considered sufficient to satisfy the requirements of the first element. In particular, the term “leclerc” does not have any particular meaning as demonstrated by the Complainant. The addition of the term “sodijour” with the Trademark by using a hyphen in-between does not avoid a finding of confusing similarity. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”). As the additional term does not have any meaning but refers to the company name of one of the Complainant’s service provider, Internet users are likely to believe that the Disputed Domain Name is associated with the Complainant, its Trademark and/or its activity. The Panel therefore finds that the Disputed Domain Name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests Numerous previous UDRP panels have found that, even though the Complainant bears the general burden of proof under paragraph 4(a)(ii) of the UDRP, the burden of production shifts to the Respondent once the Complainant makes a prima facie showing that the Respondent lacks rights or legitimate interests (see Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). Hence after the Complainant has made a prima facie showing that the Respondent has no rights or legitimate interests in the Disputed Domain Name, it will be deemed to have satisfied paragraph 4(a)(ii) of the UDRP when the Respondent fails to submit a response. See section 2.1 of the WIPO Overview 3.0. In this case, the Complainant brings forward the following elements: - No license or authorization has been granted by the Complainant to the Respondent; Therefore, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name. The Respondent has not proved otherwise. Given these circumstances, the Panel finds that the second element of the Policy has been satisfied. C. Registered and Used in Bad Faith The LECLERC Trademark has been recognized as well known by previous UDRP panels. Accordingly, the Panel considers that the Respondent, who is French, could not plausibly ignore the existence of the Complainant’s Trademarks at the time the Disputed Domain Name was registered and finds that the registration was made in bad faith. Please see Association des Centres Distributeurs E. Leclerc – A.C.D. Lec v. WhoisGuard Protected, WhoisGuard, Inc. / yop poyo,WIPO Case No. D2020-2142; Association des Centres Distributeurs E. Leclerc - A.C.D. Lec contre pierre patron,WIPO Case No. D2019-2017; Association des Centres Distributeurs E. Leclerc - ACD Lec contre Guziewicz Ryszard,WIPO Case No. D2018-0482. Furthermore, the Panel finds that the Respondent’s efforts to conceal its identity through the use of a WhoIs proxy service is a further indication that the Disputed Domain Name was registered in bad faith. As to the use of the Disputed Domain Name in bad faith, the Complainant has provided evidence that the Disputed Domain Name is being used to resolve to a website that is commonly referred to as a “parking site”, one which contains links not only to Complainant’s website, but also to those websites of Complainant’s direct competitors. Such use of PPC links is a typical use that allows the Respondent to attract Internet users for commercial gain by creating a likelihood of confusion as to source or affiliation. The Panel finds that the use of the Complainant’s Trademark to generate revenue from per-per-click advertising can be construed as evidence that the Disputed Domain Name is used in bad faith pursuant to paragraph 4(b)(iv) of the Policy. Taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the Dipsuted Domain Name by the Respondent that would not be illegitimate. By failing to reply to the Complainant’s prior cease and desist letter and then by failing to respond to the Complaint, the Respondent did not take any initiative to contest the foregoing. Pursuant to paragraph 14 of the Rules, the Panel may draw the conclusions it considers appropriate. Therefore, the Panel finds that Complainant has satisfied 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 Isabelle Leroux
(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.
- It has no relationship whatsoever with the Respondent;
- There is no indication that the Respondent is known under the Disputed Domain Name.
Sole Panelist
Date: March 9, 2021
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