The Complainant is Association des Centres Distributeurs E. Leclerc – ACD Lec, France, represented by Inlex IP Expertise, France.
The Respondent is Jurgen Neeme, Estonia. 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 10, 2020. On December 10, 2020, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On December 11, 2020, SIDN transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 11, 2020, providing the registrant and contact information disclosed by SIDN, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 11, 2020. The Center verified that the Complaint together with the Amended Complaint satisfied the formal requirements of the Dispute Resolution Regulations for “.nl” Domain Names (the “Regulations”). In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 21, 2020. In accordance with the Regulations, article 7.1, the due date for Response was January 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 12, 2021. The Center appointed Willem J. H. Leppink as the panelist in this matter on February 12, 2021. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background The following facts are undisputed. The Complainant is a renowned chain of supermarket and hypermarket stores in France. The Complainant owns several trademark registrations comprising of the word element “E LECLERC”, including, but not limited to, the European Union word mark E LECLERC No. 002700664 registered on January 1, 2005 (the “Trademark”). The Complainant is the owner of various domain names that incorporate the Trademark, including inter alia The Domain Name was registered on February 10, 2020. At the time of registration of the Domain Name, it resolved to a parked page comprising pay-per-click (“PPC”) links which included hyperlinks relating to the Complainant’s activity under the Trademark, namely a supermarket and hypermarket chain (the “Website”). In addition, the Website indicated that the Domain Name is for sale. 5. Parties’ Contentions A. The Complainant Insofar as relevant for deciding this matter, the Complainant contends the following. The Domain Name is identical to the Trademark as it incorporates the Trademark in its entirety. The Respondent has no rights or legitimate interests in the Domain Name. First of all, the Domain Name was registered anonymously. Second, the Respondent is not commonly known under the name “E LECLERC”, nor was the Respondent authorized by the Complainant to use that name or to register a domain name which contains the Trademark. Also, there is no business relationship between the Complainant and the Respondent and the Domain Name is not used in connection with a bona fide offering of goods and/or services. The Domain Name is registered and is being used in bad faith. Because the Domain Name is identical to the Trademark and because of the strong public awareness of the Trademark, the Respondent has undoubtedly registered the Domain Name because he was aware of the existence of the Trademark and the Complainant’s activities. Also, there is no legitimate or fair use of the Domain Name. In addition, there is a risk that the Respondent may be engaged in a phishing scheme aiming to deceive Internet users and make them believe that they would be dealing with the Complainant. B. The Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to article 2.1 of the Regulations the Complainant must prove each of the following three elements: a) the Domain Name is identical or confusingly similar to: I) a trademark or trade name protected under Dutch law in which the Complainant has rights; or II) a personal name registered in the General Municipal Register (Gemeentelijke Basisadministratie) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and b) the Respondent has no rights to or legitimate interests in the Domain Name; and c) the Domain Name has been registered or is being used in bad faith. Article 10.3 of the Regulations provides that in the event a respondent fails to submit a response, the complaint shall be granted unless the panel considers it to be without basis in law or in fact. The Panel thereby notes that this does not mean that the requested remedy should automatically be awarded. The Panel will have to determine whether the Complainant’s case prima facie meets the requirements of article 2.1 of the Regulations. A. Identical or Confusingly Similar Pursuant to article 2.1(a) under I of the Regulations, the Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which the Complainant has rights. The Complainant has shown that it has rights in the Trademark valid in the European Union. Previous panels have found that a domain name is confusingly similar to a complainant’s trademark where the domain name incorporates the trademark in its entirety, which is the case here. It is well-established under .nl case law that the country code Top-Level Domain “.nl” may be disregarded for purposes of article 2.1(a) of the Regulations. The Panel finds that the Domain Name is identical to the Trademark, as required by the Regulations. The Complainant has thus established the first element of article 2.1 of the Regulations. B. Rights or Legitimate Interests The Respondent did not reply to the Complainant’s contentions. Consistent with earlier decisions under the Regulations, the Complainant must prima facie demonstrate that the Respondent has no rights to or legitimate interests in the Domain Name. If the Complainant succeeds in making out this prima facie case, the burden of production shifts to the Respondent, who will then have to come forward with appropriate allegations or evidence demonstrating a right to or legitimate interests in the Domain Name (see Auto 5 v. E. Shiripour,WIPO Case No. DNL2008-0027). The Respondent may demonstrate such rights or legitimate interests inter alia through any of the following circumstances based on article 3.1 of the Regulations: a) before having any notice of the dispute, the Respondent made demonstrable preparations to use the Domain Name (or a name corresponding to the Domain Name) in connection with a bona fide offering of goods or services; or b) the Respondent as an individual, business or other organization is commonly known by the Domain Name; or c) the Respondent is making a legitimate noncommercial use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the relevant trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation located in the Netherlands. The Respondent does not appear to be affiliated with the Complainant in any way. He appears to be an individual located in Estonia and there is no evidence that “E Leclerc” is his name or that he is commonly known as “E Leclerc”. Neither does the record show that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever requested and been permitted in any way by the Complainant to register or use a domain name incorporating the Trademark. According to the evidence submitted by the Complainant, the Website is a parked page comprising PPC links such as “Grocery Delivery Service App”, “Shopping Supermarket”, and “Promo”, which links compete with or capitalize on the reputation and goodwill of the Trademark (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.9).1 Noting that the Domain Name incorporates the Trademark in its entirety, the Panel finds that such use does not represent a bona fide offering of goods and/or services. It is also clear from the facts presented in this case that the Respondent is not making any legitimate noncommercial of fair use of the Domain Name. Noting further that the Respondent has failed to respond to the Complaint and thus has not taken any steps to rebut the Complainant’s arguments, the Panel finds that the Respondent lacks rights to or legitimate interests in the Domain Name. The Complainant has thus established the second element of article 2.1 of the Regulations. C. Registered or Used in Bad Faith In light of its considerations under Section 6.B, the facts presented by the Complainant and the lack of a response by the Respondent, the Panel finds that the Domain Name has been registered and is used in bad faith. In the Panel’s view, there is no plausible explanation why the Respondent registered the Domain Name other than the Respondent intending to trade off the goodwill and reputation associated with the Complainant. The Panel finds that the Respondent has intentionally attempted to attract Internet users to its website by creating a likelihood of confusion with the Trademark. The panel further notes that the record contains indications that the Respondent may be engaged in a phishing scheme. The evidence also shows that the Respondent is offering the Domain Name for sale. While, consistent with section 3.1.1 of WIPO Overview 3.0, the registration of a domain name for subsequent resale (including for a profit) would not by itself support a finding of bad faith, the above discussed circumstances indicate that the Respondent’s intent in registering the Domain Name was to illegitimately profit from or otherwise exploit the Trademark. In conclusion, the Panel is satisfied that the third element of article 2.1 of the Regulations has been met and that the Domain Name was registered and is being used in bad faith. 7. Decision For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name Willem J. H. Leppink 1 In view of the fact that the Regulations are to an extent based on the Uniform Domain Name Dispute Resolution Policy (“UDRP”), it is well established that both cases decided under the Regulations and cases decided under the UDRP, and therefore WIPO Overview 3.0, are relevant to this proceeding (see, e.g., Aktiebolaget Electrolux v. Beuk Horeca B.V.,WIPO Case No. DNL2008-0050).
Panelist
Date: February 26, 2021
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