The Complainant is Auchan Holding SA, France, represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is 王建国 (Wang Jian Guo), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2021. On April 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 2, 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 April 14, 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 in English on April 15, 2021. On April 14, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on April 15, 2021. The Respondent did not comment on the language of the proceeding. 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 in English and Chinese, and the proceedings commenced on May 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 28, 2021. The Center appointed Joseph Simone as the sole panelist in this matter on June 16, 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, Auchan Holding SA, is the 11th largest food retailer in the world, and currently operates in 17 countries with 354,851 employees worldwide. The Complainant has an extensive global portfolio of trade marks including the term “Auchan”, including the following: - International Trade Mark Registration No. 1130961 in Classes 1 to 45, registered on December 13, 2011; - International Trade Mark Registration No. 1333050 in Class 35, registered on September 1, 2016; - International Trade Mark Registration No. 1432360 in Classes 1 to 35, registered on January 23, 2018; - China Trade Mark Registration No. 949436 in Class 25, registered on February 21, 1997; - China Trade Mark Registration No. 10498844 in Class 35, registered on April 7, 2013; and - China Trade Mark Registration No. 10498893 in Class 25, registered on September 14, 2013. Through its authorized affiliate, the Complainant owns over 600 domain names featuring the AUCHAN trade mark. Some examples are: The disputed domain name was registered on November 23, 2019. According to the Complainant, at the time the Complaint was filed, the disputed domain name resolved to an inactive website. 5. Parties’ Contentions A. Complainant The Complainant asserts that it has prior rights in the AUCHAN trade marks and that it is a leading player in its fields of business. The Complainant further notes that the disputed domain name registered by the Respondent is identical or confusingly similar to the Complainant’s AUCHAN trade marks, and the addition of the Top-Level Domain (“TLD”) “.store” does not affect the analysis as to whether the disputed domain name is identical or confusingly similar to the Complainant’s trade marks. The Complainant asserts that it has not authorized the Respondent to use the AUCHAN mark, and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. The Complainant also asserts that there is no evidence suggesting that the Respondent has any connection to the AUCHAN mark in any way, and that there is no plausible good faith reason for the Respondent to have registered the disputed domain name, especially after considering the relevant circumstances. The Complainant therefore concludes that the registration and any use of the disputed domain name whatsoever must be in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceeding In accordance with paragraph 11(a) of the Rules: “[…] the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” In this case, the language of the Registration Agreement for the disputed domain name is Chinese. Hence, the default language of the proceeding should be Chinese. However, the Complainant filed the Complaint in English, and requested that English be the language of the proceeding, asserting inter alia that: - the Complainant is unable to communicate in Chinese and translation of the Complaint would unfairly disadvantage and burden the Complainant and delay the proceedings and adjudication of this matter; - the disputed domain name is comprised of Latin characters and an English word. The Respondent was notified in both Chinese and English of the language of the proceeding and the Complaint and did not comment on the language of the proceeding or submit any response. Considering the circumstances in this case, the Panel has determined that the language of the proceeding shall be English, and the Panel has issued this decision in English. The Panel further finds that such determination will not cause any prejudice to either Party and will ensure that the proceeding takes place with due expedition. B. Identical or Confusingly Similar The Panel acknowledges that the Complainant has established rights in the AUCHAN trade mark in many territories around the world. Disregarding the “.store” TLD, the disputed domain name consists exclusively of the AUCHAN trade mark in its entirety. Thus, the disputed domain name should be regarded as identical to the Complainant’s AUCHAN trade mark. The Panel therefore finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the AUCHAN trade mark and in showing that the disputed domain name is identical to its mark. C. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, the complainant is required to establish a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent carries the burden of producing evidence in support of its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. The Complainant has not authorized the Respondent to use its trade mark and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Thus, the Complainant has established its prima facie case with satisfactory evidence. The Respondent did not file a response and has therefore failed to assert factors or put forth evidence to establish that it enjoys rights or legitimate interests in the disputed domain name. As such, the Panel concludes that the Respondent has failed to rebut the Complainant’s claims that the Respondent lacks rights or legitimate interests in the disputed domain name, and that none of the circumstances of paragraph 4(c) of the Policy is applicable in this case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith Paragraph 4(b) of the Policy states that any of the following circumstances in particular but without limitation shall be considered evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trade mark or service mark) or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) circumstances indicating that the respondent registered the domain name to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location. The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances in which bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trade mark of another party. Match.com, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230. For the reasons discussed under this and the preceding heading, the Panel believes that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. When the Respondent registered the disputed domain name in November 2019, the AUCHAN trade marks were already widely known and directly associated with the Complainant’s activities. Given the extensive prior use and fame of these marks, in the Panel’s view, the Respondent should have been aware of the Complainant’s marks when registering the disputed domain name. The Respondent has provided no evidence to justify his registration of the disputed domain name. Given the foregoing, it would be unreasonable to conclude that the Respondent – at the time of the registration of the disputed domain name – was unaware of the Complainant’s trade mark, or that the Respondent’s adoption of the uncommon and distinctive trade mark AUCHAN was a mere coincidence. The Complainant’s registered trade mark rights in AUCHAN for its signature products and services predate the registration date of the disputed domain name by at least two decades. A simple online search (e.g., via Baidu) for the term “auchan” would have revealed that it is a world-renowned brand. The disputed domain name is identical to the Complainant’s trade mark, and uses the TLD “.store”. The Panel further notes that the “.store” TLD directly targets the Complainant’s field of business and its use would only increase the likelihood of confusion. The Panel is therefore of the view that the Respondent registered the disputed domain name with full knowledge of the Complainant’s trade mark rights and with the intention of taking advantage of the fame and reputation of the Complainant’s trade mark. The fact that the disputed domain name does not resolve to an active website does not prevent a finding of bad faith. Accordingly, the Panel finds that the disputed domain name was 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 Joseph Simone
Sole Panelist
Date: June 30, 2021
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