The Complainant is Carrefour, France, represented by Dreyfus & associés, France.
The Respondent is Mamadou Paulo, 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 August 15, 2019. On August 15, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 15, 2019, 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 August 22, 2019 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 August 26, 2019. 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 August 27, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 16, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2019. The Center appointed Alexandre Nappey as the sole panelist in this matter on October 7, 2019. 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 is the French company Carrefour, a global leader in food retail with its headquarters in France. The Complainant also offers banking and insurance services. The Complainant operates more than 12,300 stores and e-commerce sites in more than 30 countries and regions and employs more than 375,000 people worldwide. The Complainant generated 88.24 billion euros in sales. Every day, the Complainant welcomes around 104 million customers around the world. The Complainant also receives 1.3 million unique visitors per day across all its websites, including “www.carrefour.com”. The Complainant is the owner of many national, international and European trademark registrations for CARREFOUR and BANQUE CARREFOUR, among which: - French trademark BANQUE CARREFOUR No. 3585968, registered on July 2, 2008, duly renewed and covering services in class 36; The Complainant also owns various domain names, and operates certain of those domain names to promote its services: - The disputed domain name has been registered on December 27, 2018. According to the Complainant, the disputed domain name previously resolved to a website of an Italian restaurant, then was deactivated and then redirected to a page in Chinese. At the time of the present decision, the disputed domain name redirects to an error page. 5. Parties’ Contentions A. Complainant The Complainant first alleges that the disputed domain name - The disputed domain name incorporates the Complainant’s earlier trademark CARREFOUR in its entirety with the addition of the generic word “banque” (meaning “bank” in English), which increases the likelihood of confusion since the Complainant also has banking activities; - The disputed domain name imitates the Complainant’s earlier trademark BANQUE CARREFOUR by inversing its sequence, which does not significantly affect the appearance or pronunciation of the domain name and is sufficient for a finding of confusing similarity. The Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is neither affiliated with the Complainant in any way nor has he been authorized or licensed by the Complainant to use and register its trademarks CARREFOUR and CARREFOUR BANQUE or to seek registration of any domain name incorporating the afore said trademarks. The registrations of CARREFOUR and BANQUE CARREFOUR preceded the registration of the disputed domain name by several years. The Respondent is not commonly known by the disputed domain name or the names “Carrefour” or “Banque Carrefour”. The Respondent is not making a legitimate noncommercial or bona fide use of disputed domain name. Finally, the Respondent appears to be a cybersquatter as he has been involved before in several other UDRP proceedings concerning domain names, which replicated the Complainant’s trademarks CARREFOUR and BANQUE CARREFOUR. The Complainant claims that the disputed domain name was registered and is being used in bad faith. Firstly, the Complainant asserts that it is implausible that the Respondent was unaware of the Complainant when he registered the disputed domain name as the Complainant’s CARREFOUR trademark enjoys considerable goodwill and renown throughout the world. In this regard, several UDRP panels have previously acknowledged the Complainant’s worldwide reputation, making it unlikely that the Respondent was not aware of the Complainant’s rights in the said trademark. The Complainant asserts that its trademark rights significantly predate the registration date of the disputed domain name, which has been registered in 2018. The Respondent could not have ignored the existence of the trademarks CARREFOUR and BANQUE CARREFOUR since he has already been involved in several other UDRP proceedings concerning domain names which replicated the Complainant’s trademarks (Carrefour v. WhoisGuard, Inc. / Mamadou Paulo, WIPO Case No. D2019-0815and, Carrefour v. WhoisGuard, Inc. / Mamadou Paulo,WIPO Case No. D2019-0758). According to the Complainant, the registration of the disputed domain name The Complainant asserts that the webpages to which the disputed domain name resolves have changed several times. Initially, the disputed domain name resolved towards the page of an Italian restaurant. Then, the webpage was deactivated. The domain name resolved towards a page in Chinese, which appears to be under construction and additionally requiring a registration. Given the Complainant’s renown and goodwill worldwide and the nature of the disputed domain name itself while reproducing/imitating the Complainant’s famous CARREFOUR and BANQUE CARREFOUR trademarks, there simply cannot be any “actual or contemplated good faith use” of the disputed domain name by the Respondent or any third party, as any use would result in misleading diversion and unfairly taking advantage of the Complainant’s rights. According to the Complainant, the aforementioned circumstances confirm that the disputed domain name is used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Notwithstanding the lack of a formal response from the Respondent, it remains up to the Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and However, under paragraph 14(b) of the Rules, where a Party does not comply with any provision of the Rules, the Panel “shall draw such inferences therefrom as it considers appropriate”. Having considered the Parties’ contentions, the Policy, Rules, Supplemental Rules and applicable substantive law, the Panel’s findings on each of the above-mentioned elements are the following: A. Identical or Confusingly Similar The Panel is satisfied that the Complainant owns exclusive trademark rights in CARREFOUR and BANQUE CARREFOUR, which predate the registration of the disputed domain name The Panel finds that the disputed domain name is confusingly similar to the registered CARREFOUR and BANQUE CARREFOUR trademarks owned by the Complainant. Indeed, the disputed domain name incorporates the entirety of the Complainant’s well-known trademark CARREFOUR with the mere addition of the dictionary, term “banque” (“bank” in English) which refers to the Complainant’s banking activities; The disputed domain name incorporates the entirety of the Complainants CARREFOUR BANQUE trademark, reversing the two words, which does not avoid confusing similarity. Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant's mark under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the 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 trademark 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 trademark or service mark at issue. Considering the difficulty to demonstrate a negative, UDRP panels generally find that if the complainant raises a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the policy and then the burden shifts to the respondent to demonstrate its rights or legitimate interests. (See De Beers Intangibles Limited v. Domain Admin, Whois Privacy Corp.,WIPO Case No. D2016-1465). Here, the Complainant has stated that it has not authorized, licensed or consented to the Respondent any use of its CARREFOUR or CARREFOUR BANQUE trademarks. It results from the circumstances of this case that the Respondent (whose name is Mamadou Paulo) does not own any right on the trademarks CARREFOUR or BANQUE CARREFOUR or is not commonly known by the disputed domain name. In the light of what is stated above, the Panel finds that the Complainant has made an unrebutted prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. As the Respondent has not provided otherwise, the Panel finds from the available record that the second element of paragraph 4(a) of the Policy is fulfilled. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out examples of circumstances that will be considered by a panel to be evidence of bad faith registration and use of a domain name. It provides that: “For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.” Since CARREFOUR is a well-known and distinctive trademark and there is no evidenced relationship between the Parties, it may be assumed that the Respondent was aware of the Complainant’s trademark at the time he registered the disputed domain name Moreover, the Respondent has used a privacy service to hide his identity when he registered the disputed domain name and it appears to be located in France where the Complainant originates and has its headquarters. Finally, the Respondent has been involved in other UDRP procedures concerning the CARREFOUR and BANQUE CARREFOUR trademarks. At the view of all these elements, it is not reasonably possible that the Respondent registered the disputed domain name without knowledge of the Complainant’s trademarks. It appears therefore that the Respondent, by making reference to the CARREFOUR trademarks, is trying to create a likelihood of confusion in order to attract, for commercial gain, Internet users to websites on which third parties, who are promoting their own products. Conversely, the Panel finds that the Respondent registered the disputed domain name with the Complainant in mind and with the intention of capitalizing on the reputation of the Complainant within the meaning of paragraph 4(b)(iv) of the Policy. The Panel finds that the above constitutes registration and use in bad faith pursuant to the third requirement of paragraph 4(a) 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, Alexandre Nappey
- French trademark CARREFOUR No. 1487274, registered on September 2, 1988, duly renewed, and covering services in classes 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 45;
- European Union trademark CARREFOUR No. 008779498, filed on December 23, 2009, registered on July 13, 2010 and covering services in class 35;
- European Union trademark CARREFOUR No. 005178371, filed on June 20, 2006, registered on August 30, 2007, duly renewed and covering goods and services in classes 9, 35 and 38.
-
-
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Sole Panelist
Date: October 18, 2019
Full & Egal Universal Law Academy