The Complainant is Association des Centres Distributeurs E. Leclerc, France, represented by Inlex IP Expertise, France.
The Respondent is WhoisGuard, Inc., Panama / Sumianto Ridwan, United States of America. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 31, 2019. On January 2, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 2, 2020, 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 3, 2020, 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 6, 2020. 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 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 28, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 29, 2020. The Center appointed James Bridgeman as the sole panelist in this matter on February 10, 2020. 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 a French association of supermarkets and hypermarket stores. Its name ACD Lec (Association Des Distributeurs E. Leclerc) is derived from the first name of the founder and promoter of the association, M. Edouard Leclerc. The Complainant owns European Union Trade Mark registration E LECLERC, registration number 002700664 registered on January 31, 2005, in classes 1 to 45 inclusive. The Complainant has an established Internet presence with websites at “www.e-leclerc.com ” and “www.mouvement.leclerc”. The disputed domain name was registered on August 30, 2019, and resolves to a website with advertisements and links to third party websites. The first named Respondent is a privacy service. The second named Respondent is the underlying registrant of the disputed domain name who has been identified by the Registrar in response to the Center’s request for verification of the registration details of the disputed domain name in the course of this Complaint. Otherwise, there is no information available about the Respondents except for that which is provided in the Complaint, the Registrar’s WhoIs. Except where the context otherwise provides “Respondent” in this decision refers to the second named Respondent. 5. Parties’ Contentions A. Complainant The Complainant asserts rights in the E LECLERC trademark acquired through its claimed ownership of the portfolio of trademark registrations described above and the submits that the disputed domain name is identical to its E LECLERC mark. The Complainant adds that the addition of the “.me” Top-Level Domain (“TLD”) extension does not diminish the likelihood of confusion between the disputed domain name and the mark in which the Complainant has rights. The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name arguing that there is no indication that the Respondent is commonly known by the disputed domain name. The Respondent initially concealed its name which does not appear on the Registrar’s published WhoIs as the disputed domain name was registered anonymously using a privacy service and the Respondent’s name was only disclosed in the course of this Complaint proceeding. Neither does the website to which the disputed domain name resolves identify the Respondent. The Complainant additionally asserts that there is no business connection between the Respondent and the Complainant; that the Respondent has not been authorised by the Complainant use the E LECLERC mark; and that the disputed domain name is not used in connection with a bona fide offering of goods or services. Furthermore, the Complainant asserts that the Respondent is not making any noncommercial fair use of the disputed domain name. The Complainant submits that the disputed domain name was registered in bad faith. The Complainant asserts that it has used the E LECLERC trademark in business in France for almost 70 years and the Complainant and its trademark now enjoy a reputation in several European countries with 691 stores in France, having a 20% market share and approximately 100 stores in other jurisdictions that employ approximately 130,000 people. The Complainant asserts that the denominations “eleclerc” have no meaning in French or English and that its trademark is therefore highly distinctive. The Complainant submits that it is therefore implausible that the Respondent was unaware of the activities of the Complainant or the existence of its trademark at the time of registration of the disputed domain name. The Complainant adds that the choice and registration of the disputed domain name cannot be a coincidence. The Complainant further submits that the disputed domain name is being used in bad faith and has provided evidence in the form of a screenshot of the website to which the disputed domain name resolves that illustrates that the website contains merely random advertisements and links to e-commerce websites with no information about the Respondent. The Complainant argues that such use of the disputed domain name disturbs the Complainant’s business and damages its brand. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4 of the Policy requires the Complainant to establish that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (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. A. Identical or Confusingly Similar The Complainant has adduced uncontested evidence that it has rights in the E LECLERC trademark and service mark established by its abovementioned trademark registrations and the reputation that it has established by the use of the mark in its supermarket and hypermarket business in France and other European Union jurisdictions for almost 70 years. The disputed domain name is identical to the Complainant’s E LECLERC trademark and service mark. For the purpose of comparison of the disputed domain name and the Complainant’s mark, the TLD extension “.me” may be ignored in the circumstances of the present case. The Complainant has therefore satisfied the first element of the test in paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name arguing that there is no indication or evidence on the Registrar’s WhoIs or otherwise on the record that the Respondent is commonly known by the disputed domain name. The Respondent’s name which was initially concealed, and which was only disclosed in the course of this Complaint proceeding is quite different from the disputed domain name and the Respondent is not identified on the website to which the disputed domain name resolves. The Complainant additionally asserts that there is no business connection between the Respondent and the Complainant; that the Respondent has not been authorised by the Complainant to use the E LECLERC mark; that the disputed domain name is not used in connection with a bona fide offering of goods or services. Furthermore, the Complainant has provided evidence that the disputed domain name resolves to a website that contains links to third party websites and therefore the Respondent is not making any noncommercial fair use of the disputed domain name. As the Complainant has made out the prima facie case, the burden of production shifts to the Respondent to show that he has rights or legitimate interests in the disputed domain name. As the Respondent has failed to submit any Response to this Complaint, the Respondent has failed to discharge the burden of production and so this Panel must find on the balance of probabilities that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has therefore satisfied the second element of the test in paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith While “Leclerc” is a known family name, the combination of the name preceded by the initial letter “e” is recognizable as the distinctive trademark of the Complainant. The Complainant has made out an uncontested case that the disputed domain name was chosen and registered to refer to the Complainant’s name and mark. The Complainant’s mark is well known. The Complainant has an established Internet presence and on the balance of probabilities the registrant of the disputed domain name was aware of the Complainant’s website at “ www.e-leclerc.com ” address when the disputed domain name was registered. There is no plausible reason why the disputed domain name would have been registered and used as the address of a website which has links to third party websites other than to target and intercept Internet traffic intended for the Complainant and to take predatory advantage of the goodwill and reputation of the Complainant, its name, mark and goodwill. On the balance of probabilities therefore the disputed domain name was registered in bad faith. In the absence of any defense or explanation from the Respondent, the evidence adduced relating to the Respondent’s website proves on the balance of probabilities, that the Respondent is using the disputed domain name in bad faith in an intentional attempt to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of products or services on his web site. As this Panel finds that the disputed domain name was registered and is being used in bad faith, the Complainant has also succeeded in the third and final element of the test in paragraph 4(a)(iii) of the Policy and is entitled to succeed in this application. 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 James Bridgeman
Sole Panelist
Date: February 17, 2020
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