ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Carrefour SA v. Thierry Hagron, KINEMEDIA Case No. D2022-4157 1. The Parties The Complainant is Carrefour SA, France, represented by IP Twins, France. The Respondent is Thierry Hagron, KINEMEDIA,1 France. 2. The Domain Name and Registrar The disputed domain name is registered with Network Solutions, LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 3, 2022. On November 3, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 3, 2022, 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 (Statutory Masking Enabled) and contact information in the Complaint. The Center sent an email communication to the Complainant on November 8, 2022 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 November 9, 2022. 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 November 11, 2022. In accordance with the Rules, paragraph 5, the due date for Response was December 1, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 2, 2022. 1 The Complaint against this Respondent was originally filed against "Statutory Masking Enabled", as found in the publicly available WhoIs details for the disputed domain name. The identity of the Respondent was subsequently disclosed by the Registrar in response to the Center's request for registrar verification in connection with the disputed domain name. The amended Complaint lists the person disclosed by the Registrar as the Respondent. page 2 The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on December 15, 2022. 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. On December 23, 2022, the Panel issued a procedural order (the "Procedural Order No. 1"), in the following terms: "The Panel has reviewed the submissions of the Parties and notes the Complainant relies on its registered trademark CARREFOUR for the purposes of the first element. The Complainant has alleged that the letters "crf" are an abbreviation of the Complainant's CARREFOUR trademark, but has provided limited evidence in support of such contention. Accordingly, pursuant to paragraphs 10 and 12 of the Rules, the Panel invites the Complainant to: 1) provide further explanation with clear supporting evidence that "crf" is recognized as an abbreviation of the Complainant's CARREFOUR trademark by the general public; and/or 2) provide further explanation with clear supporting evidence that "crf" is confusingly similar to the Complainant's CARREFOUR trademark - orally, phonetically, visually, or otherwise; and/or 3) provide further explanation with clear supporting evidence that "crf" itself has become a source identifier in which the Complainant has rights for the purposes of paragraph 4(b)(iv) of the Policy. The Complainant may submit a reply with relevant supporting evidence by January 5, 2023. The Respondent may comment on any submission by the Complainant in reply to this order by January 10, 2023. Further submissions should be limited to the above request, and communicated directly with the Center via domain.disputes@wipo.int, copying the other Party. The due date for the Decision is extended to January 20, 2023." On December 26, 2022, the Complainant transmitted by email to the Center a response to Procedural Order No. 1 with a file of annexes. The Respondent did not file anything. 4. Factual Background The Complainant, a company registered in France and listed on the Paris Stock Exchange, is a world leader in retail goods sales and has pioneered in 1968 the creation of the first hypermarkets. It operates more than 12,000 stores in over 30 countries, with more than 384,000 employees worldwide and 1.3 million visitors daily in its stores. Besides retail, the Complainant offers banking, insurance, ticketing and travel services. The Complainant owns a very large portfolio of trademarks containing the distinctive element CARREFOUR, including the international trademark CARREFOUR, registered under No. 351147 on October 2, 1968 and the international trademark CARREFOUR, registered under No. 353849 on February 28, 1969 (together hereinafter referred to as: "the Mark"). The Complainant also owns the domain name, registered on October 25, 1995, and several hundred other domain names related to its activities, incorporating the element "carrefour". It also owns three domain names incorporating the element "crf", , and page 3 The disputed domain name was registered on December 5, 2007. The Complainant has submitted evidence that the disputed domain name resolved to a blank page. 5. Parties' Contentions A. Complainant (i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is confusingly similar to the Mark, insofar as the disputed domain name contains an abbreviation of the Mark, which is also the acronym of the Complainant's corporate name. (ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends it never authorized the Respondent to use the Mark in any manner and that the Respondent has no license from the Complainant. (iii) The Complainant submits that the Respondent has registered the disputed domain name in bad faith and alleges that the Respondent had knowledge of the Mark when registering the disputed domain name. (iv) The Complainant submits that by its passive holding and by having configured a MX server, the Respondent is using the disputed domain name in bad faith. (v) The Complainant 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 6.1. Failure to respond As aforementioned, no Response was received from the Respondent. Under the Rules, paragraphs 5(f) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint. Under paragraph 4(a) of the Policy, it is the Complainant's burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even in the event of a default. Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent's default as it considers appropriate under the circumstances, even though a respondent's failure to file a Response does not automatically result in a decision in favor of the Complainant. 6.2. Requirements of paragraph 4(a) of the Policy A. Identical or Confusingly Similar To succeed, in accordance with paragraph 4(a)(i) of the Policy, the Complainant must satisfy the Panel that the disputed domain name is identical with or confusingly similar to a trademark in which the Complainant has rights. page 4 In comparing the Mark with the disputed domain name, it is evident that the latter consist of the three letters "crf", preceded by the word "groupe" (French for "group") and followed by the letters "com" and the generic Top-Level Domain ("gTLD") ".com". To support its contention of confusing similarity, the Complainant has provided evidence of its use of the letters "crf" as a source identifier for its products or services, and of the use of the letters "crf" as an abbreviation of CARREFOUR, which has not been rebutted by the Respondent. The Panel finds that using the acronym "crf" in lieu of "carrefour" in the disputed domain name does prevent the Mark from being recognizable in the disputed domain name. It is also well established that a gTLD does not generally affect the assessment of a domain name for the purpose of determining identity or confusingly similarity. The Panel finds that the disputed domain name is confusingly similar to the Mark. The Panel also notes that the Complainant's own homepage refers very prominently to "Groupe Carrefour" thereby further supporting such finding. Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy, this could result in the often impossible task of proving a negative proposition, requiring information that is primarily, if not exclusively, within the knowledge of a respondent. Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing of a lack of rights or legitimate interests on the part of the respondent, as the Panel believes the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270. As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name. The disputed domain name resolves to an inactive parking page. No information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name. To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent received (i) no license from the Complainant and (ii) no authorization from the Complainant to register or use the disputed domain name. Accordingly, the Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which has not been rebutted by the Respondent. C. Registered and Used in Bad Faith As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant's arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name confusingly similar to the Mark. page 5 It has been established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke, WIPO Case No. D2001-0775. In this case, given that the Mark is distinctive and well known, as was recognized in a number of UDRP decisions (see for instance Carrefour v. Yujinhua, WIPO Case No. D2014-0257; Carrefour v. Park KyeongSook, WIPO Case No. D2014-1425; Carrefour v. VistaPrint Technologies Ltd., WIPO Case No. D2015-0769; Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records, WIPO Case No. D2017-2533; Carrefour v. Jane Casares, NA, WIPO Case No. D2018-0976; Carrefour v. Jean-Pierre Andre Preca, WIPO Case No. D2018-2857; Carrefour v. Perfect Privacy, LLC / Milen Radumilo, WIPO Case No. D2019-2610 and Carrefour v. Contact Privacy Inc. Customer 0155401638 / Binya Rteam, WIPO Case No. D2019-2895), the Panel finds that it is impossible to believe that the Respondent chose to register the disputed domain name randomly with no knowledge of the Mark. See Barney's Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384, citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092. In addition, it is well established that the mere passive holding of a domain name may in appropriate circumstances be evidence not only of bad faith registration, but also of bad faith use. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; DCI S.A. v. Link Commercial Corporation, WIPO Case No. D2000-1232; Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques, WIPO Case No. D2000-0004; and Alitalia -Linee Aeree Italiane S.p.A v. Colour Digital, WIPO Case No. D2000-1260. Moreover, the Panel notes that the Complainant provided evidence that the Respondent has configured a MX server in connection with the disputed domain name, which could be used to send phishing emails, which reinforces the finding that the Respondent registered and used the disputed domain name in bad faith. Prior UDRP panels have also held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible, considering the specificity of the activity (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148). The Panel finds it is indeed not possible to imagine any plausible future active use of the disputed domain name that would not be illegitimate, considering the specificity of the Complainant's activities. Furthermore, in this case, the Respondent took active steps to hide his identity. Although using a proxy or privacy service to hide the identity of the registrant is not per se conclusive of bad faith registration and use (see Trinity Mirror Plc and MGN Ltd. v. Piranha Holdings, WIPO Case No. D2008-0004), the Panel notes that the fact that the Respondent used a privacy service to hide its identity and contact details prevented the Complainant from contacting it. Prior UDRP panels have held that deliberate concealment of identity and contact information may in certain circumstances be indicative of registration in bad faith (see TTT Moneycorp Limited v. Diverse Communications, WIPO Case No. D2001-0725, and Schering Corporation v. Name Redacted, WIPO Case No. D2012-0729). See section 3.2.1 of the WIPO Overview 3.0. In addition, when registering the disputed domain name, the Respondent provided false or incomplete contact details that prevented the courier service from delivering the Center's written communications. Finally, some UDRP panels have held that in certain circumstances, registrants of domain names would have a duty to abstain from registering and using a domain name, which is either identical or confusingly similar to a prior trademark held by others and which would infringe upon or otherwise violate the rights of a third party. Contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141. page 6 The Panel concludes in the light of all these circumstances that the Respondent's registration and use of the disputed domain name constitute bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case. 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, , be transferred to the Complainant. /Louis-Bernard Buchman/ Louis-Bernard Buchman Sole Panelist Date: January 12, 2023
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