WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Carrefour v. Latoya Humphrey
Case No. D2017-1038
1. The Parties
The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
The Respondent is Latoya Humphrey of Francesville, Indiana, United States of America ("USA").
2. The Domain Name and Registrar
The disputed domain name <mabanque-carrefour.org> is registered with Todaynic.com, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on May 29, 2017. On May 29, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 31, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On May 31, 2017, the Center transmitted an email in English and Chinese regarding the language of the proceeding. The Complainant requested that English be the language of proceeding on the same day. The Respondent did not comment on the language of proceeding by the specified due date.
The Center verified that the 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 in English and Chinese of the Complaint, and the proceedings commenced on June 7, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 27, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 28, 2017.
The Center appointed Linda Chang as the sole panelist in this matter on July 3, 2017. 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 Carrefour Group is a leading retailer in Europe and one of the largest retailers in the world. It has a presence in more than 30 countries, and it generates more than 53% of its sales outside France.
Carrefour Banque was launched more than thirty years ago with a consumer credit solution associated with the first personal payment card providing multiple benefits in Carrefour stores.
Carrefour Banque is a successful business, as can be seen from the continuous rise in the number of "PASS" card transactions in France and abroad, its EUR 3.2 billion in loans outstanding and EUR 2.3 billion in savings deposits held for its customers.
Carrefour offers its customers financing, savings and insurance solutions at more than 900 agencies and financial service stands around the world.
The Complainant owns numerous trademarks worldwide including the following:
(a) French trademark CARREFOUR No. 1487274, dated September 2, 1988, duly renewed, that covers goods and services in classes 35, 36, 37, 38, 39, 40, 41, 42;
(b) French trademark BANQUE CARREFOUR No. 3585968, dated July 2, 2008 and covering services in class 36;
(c) French trademark LA BANQUE CARREFOUR No. 3765316 dated September 9, 2010 and covering services in class 36.
The trademark CARREFOUR has been previously recognized as well-known in several UDRP cases. See Carrefour v. Ali Fetouh, Fasateen, WIPO Case No. D2017-0089; Carrefour v. Tony Mancini, USDIET Whoisguard, Inc., WIPO Case No. D2015-0962; Carrefour v. VistaPrint Technologies Ltd., WIPO Case No. D2015-0769; Carrefour v. Park KyeongSook, WIPO Case No. D2014-1425; Carrefour v. Yujinhua, WIPO Case No. D2014-0257; Carrefour v. Karin Krueger, WIPO Case No. D2013-2002; Carrefour S.A. v. Patrick Demestre, WIPO Case No. D2011-2248; Carrefour v. groupe carrefour, WIPO Case No. D2008-1996; Carrefour SA v. Eric Langlois, WIPO Case No. D2007-0067.
The disputed domain name was registered on May 8, 2017. The registration of the CARREFOUR, LA BANQUE CARREFOUR and BANQUE CARREFOUR trade marks predate the registration of the disputed domain name. According to the evidence submitted by the Complainant, the website at the disputed domain name has imitated the website of "Racing Club Vichy Football" which is a French association football club founded in 1945 and changed to a website impersonating the Complainant's official website.
In addition, the Complainant owns several domain names which were registered before the disputed domain name, including:
<carrefour.com> registered on October 25, 1995;
<carrefour.fr> registered on June 23, 2005;
<carrefour-banque.fr> registered on October 7, 2009.
5. Parties' Contentions
The Complainant contends as follows.
(i) Language of proceedings
The Complaint is submitted in English and the Complainant requests that the language of proceedings be English for the following reasons:
(a) The Registrar's website displays its registration agreement in English. The language of the registration agreement of the disputed domain name <mabanque-carrefour.org> may also thus be available in English.
(b) The Complainant is located in France and has no knowledge of Chinese. The Complainant would have to retain specialized translation services at a cost that is likely to be higher than the overall cost for the present proceedings. Consequently, the use of another language other than English in the proceeding would impose a burden on the Complainant which must be deemed significant in view of the cost for the present proceedings.
(c) Using the registration agreement's language, which in the present case could be Chinese, would lay an undue burden on the Complainant (Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679).
(d) Since the Complainant was unable to communicate in the language of the registration agreement, the proceeding would inevitably be delayed unduly, and the Complainant would have to incur in substantial expenses if the Complainant were to submit all documents in said language.
(e) The disputed domain name includes only Latin characters which strongly suggests that the Respondent has knowledge of languages other than Chinese.
(f) English is the primary language for international relations and it is one of the working languages of the Center.
(ii) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (Policy, paragraph 4(a)(i); Rules, paragraphs 3(b)(viii), 3(b)(ix)(1))
The disputed domain name is identical or confusingly similar to the trademarks CARREFOUR, LA BANQUE CARREFOUR and BANQUE CARREFOUR in which the Complainant has rights.
The disputed domain name <mabanque-carrefour.org> reproduces the Complainant's trademark CARREFOUR, which previous UDRP panels have considered to be "well-known" or "famous".
The incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to a complainant's registered mark (Swarovski Aktiengesellschaft v. mei xudong, WIPO Case No. D2013-0150; RapidShare AG, Christian Schmid v. InvisibleRegistration.com, Domain Admin, WIPO Case No. D2010-1059).
The disputed domain name <mabanque-carrefour.org> associates the trademark and company name CARREFOUR with the French generic terms "ma" and "banque" meaning "my" and "bank" in English, intersected by a hyphen.
As the disputed domain name incorporates the French expression "ma banque" meaning "my bank" in English, it is obvious that the Respondent is aiming at French Internet users and customers.
The websites the Respondent has set up are mainly for the French market. For example, it has imitated the website of Racing Club Vichy Football which is a French association football club founded in 1945 as well as that of the Complainant who is well-known in France.
The disputed domain name also reproduces another of the Complainant's trademarks BANQUE CARREFOUR with the mere adjunction of the French generic term "ma" ("my" in English) and a hyphen. UDRP Panels have come to the conclusion that hyphenation in domain names is"insufficient to distinguish the Respondent's domain names from the Complainant's mark because the dominant portion of each domain name is the Complainant's [trademark]."
The disputed domain name also imitates the trademark LA BANQUE CARREFOUR by merely replacing the letter "l" by the letter "m". This substitution does not significantly affect the appearance or pronunciation of the disputed domain name. This practice is commonly referred to as "typosquatting" and creates virtually identical and/or confusingly similar marks to the Complainant's trademark (Mapfre S.A. y Fundación Mapfre v. Josep Sitjar, WIPO Case No. D2011-0692; Compagnie Gervais Danone v. Jose Gregorio Hernandez Quintero, WIPO Case No. D2009-1050).
The disputed domain name <mabanque-carrefour.org> previously directed towards a website impersonating the Complainant, by reproducing its official website dedicated to banking activities ("www.carrefour-banque.fr") in order to obtain ID, password and credit card information from Internet customers.
The disputed domain name is identical in all material respects to the Complainant's trademarks CARREFOUR, LA BANQUE CARREFOUR and BANQUE CARREFOUR. Accordingly, by registering the disputed domain name, the Respondent created a likelihood of confusion with the Complainant's trademarks. It is likely that the disputed domain name could mislead Internet users into thinking that it is, in some way, associated with the Complainant.
(iii) The Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii); Rules, paragraph 3(b)(ix)(2))
The Respondent is not affiliated with the Complainant in any way nor has it been authorised by the Complainant to use and register its trademarks, or to seek registration of any domain name incorporating the Complainant's marks.
Furthermore, the Respondent has no prior rights or legitimate interests in the disputed domain name. The registration of the CARREFOUR, LA BANQUE CARREFOUR and BANQUE CARREFOUR trademarks preceded the registration of the disputed domain name for years.
In the absence of any license or permission from the Complainant to use such widely-known trademarks, no actual or contemplated bona fide or legitimate use of the disputed domain name could reasonably be claimed.
As the disputed domain name is identical to the CARREFOUR, LA BANQUE CARREFOUR and BANQUE CARREFOUR trademarks of the Complainant, the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain name.
The Respondent did not demonstrate use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
The Respondent never answered the Complainant's letter. It can be assumed that the Respondent has no rights or legitimate interests in the disputed domain name (AREVA v. St James Robyn Limoges, WIPO Case No. D2010-1017; Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim, WIPO Case No. D2003-0269).
(iv) The Respondent both registered and used the disputed domain name in bad faith in accordance with paragraph 4(a)(iii) of the Policy
Registered in bad faith
The Complainaint is well-known throughout the world. Several UDRP panels have previously mentioned its worldwide reputation, making it unlikely that the Respondent was not aware of the Complainant's proprietary rights in the CARREFOUR, LA BANQUE CARREFOUR and BANQUE CARREFOUR trademarks
The composition of the disputed domain name entirely reproduces three of the Complainant's trademarks.
The previous website of the disputed domain name <mabanque-carrefour.org> is directly connected to the Complainant, its logo and its financial activities as well as its official website.
Taking all these facts into consideration, it is impossible even to infer that the Respondent had not the Complainant's trademarks and company name in mind while registering the disputed domain name.
Used in bad faith
The Respondent is engaged in a fraudulent scheme and clearly aims at stealing valuable information such as personal banking information from the Complainant's customers through the use of an online form present on a litigious website.
UDRP panels have agreed that there is no better evidence of bad faith than a fraudulent scheme set up with the help of a domain name containing the trademark of a company the customers or Internet users of which are being misled and deceived into believing they are dealing with the owner of the trademark.
The disputed domain name <mabanque-carrefour.org> also started to redirect towards the Complainant's official website when the Respondent has received the Complainant's cease-and-desist letter.
Many Internet users attempting to visit the Complainant's website have ended up on the webpages set up by the Respondent. Previous UDRP panels have ruled that "a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from Complainant's site to Respondent's site" (MasterCard International Incorporated ("MasterCard") v. Wavepass AS, WIPO Case No. D2012-1765; Edmunds.com, Inc v. Triple E Holdings Limited, WIPO Case No. D2006-1095).
Such a behavior shows that the Respondent is attempting to take undue advantage from the registration of the disputed domain name which is confusingly similar in all aspects with the Complainant's trademarks and company name. Such a use of the disputed domain name might be hazardous for consumers as well as for the Complainant's business and reputation.
Adequate measures should be taken to prevent further fraudulent attempts from the Respondent through the use of the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Language of proceedings
According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the panel decides otherwise. Paragraph 11 is intended to ensure fairness in the selection of language by giving full consideration to the parties' level of comfort with each language, the expenses to be incurred and the possibility of delay in the proceeding in the event translations are required and other relevant factors.
Paragraph 10 of the Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
According to the information received from the Register, the language of the registration agreement for the disputed domain name is Chinese.
The Complainant filed the Complaint in English and requested that the language of the proceedings be English.
The disputed domain name only uses Latin characters. An inference could also be drawn from the fact that the registrant does not appear to have a Chinese name and has an address in the USA according to the WhoIs of the disputed domain name.
Moreover, the disputed domain name points to a website which is both in English and French. It can be assumed that the Respondent has some knowledge of English.
The WIPO Center sent "dual language" case-related communications to the Parties (i.e., in both English and Chinese) to give the Respondent opportunity to comment on the language of proceedings. The Respondent did not respond.
The Panel finds that the Respondent is not prejudiced by these proceedings in English and requiring the Complainant to submit its Complaint in Chinese would be overly onerous, causing undue burden in terms of translation expenses and delay. This is against the spirit of the UDRP which should provide an inexpensive and expeditious resolution of domain name disputes.
The language of these proceedings will be English.
A. Identical or Confusingly Similar
The Complainaint has established prior rights in the trademarks CARREFOUR, BANQUE CARREFOUR and LA BANQUE CARREFOUR.
The disputed domain name is confusingly similar to these marks, with no significant distinguishing factors being present:
(a) It comprises the well-known trademark CARREFOUR in its entirety, with the addition of the generic terms "ma" and "banque" meaning "my" and "bank' in English.
(b) It reproduces BANQUE CARREFOUR with the mere adjunction of the French generic term "ma" ("my" in English) and a hyphen.
(c) It reproduces LA BANQUE CARREFOUR by merely replacing the letter "l" by the letter "m".
The panel finds that the disputed domain name is confusingly similar with the Complainant's trademarks pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
According to paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in the disputed domain name. According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), it is well established that "where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element" (see among others, Universal City Studios, Inc. v. David Burns and Adam-12 Dot Com, WIPO Case No. D2001-0784; see also International Hospitality Management-IHM S.p.A. v. Enrico Callegari Ecostudio, WIPO Case No. D2002-0683).
The Respondent has not submitted a Response, and has failed to provide any circumstances or evidence that could have demonstrated rights or legitimate interests in the disputed domain name under paragraph 4(c) of the Policy.
According to the WIPO Overview 3.0, panels have categorically held that the use of a domain name for illegal activity (e.g.,phishing, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.
The Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
To satisfy paragraph 4(a)(iii) of the Policy, the Complainant must show that the disputed domain name has been registered and is being used in bad faith.
The Panel finds that on the basis of the evidence provided by the Complainant that the Complainant's marks are well-known worldwide. It is unlikely that at the time of acquisition of the disputed domain name that the Respondent was unaware of the Complainant's prior rights.
Given the reputation of the CARREFOUR, LA BANQUE CARREFOUR and BANQUE CARREFOUR trademarks, registration in opportunistic bad faith can be inferred without any evidence provided by the Respondent to the contrary (see for example, LEGO Juris A/S v. store24hour, WIPO Case No. Case No. D2013-0091; Lancôme Parfums et Beauté & Cie, L'Oréal v. 10 Selling, WIPO Case No. D2008-0226; Caixa D´Estalvis I Pensions de Barcelona ("La Caixa") v. Eric Adam, WIPO Case No. D2006-0464).
From the evidence provided by the Complainaint, the Respondent would appear to be engaged in a fraudulent scheme to acquire personal banking information.
The use of a disputed domain name for the purpose of defrauding Internet users by the operation of a "phishing" website is perhaps the clearest evidence of registration and use of a domain name in bad faith (see for example, OLX, Inc. v. J D Mason Singh, WIPO Case No. D2014-1037; The Royal Bank of Scotland Group plc v. Secret Registration Customer ID 232883 / Lauren Terrado, WIPO Case No. D2012-2093).
The Complainant has provided satisfactory evidence that the Respondent's conduct falls within paragraph 4(b) of the Policy and accordingly, the Panel concludes that the Respondent registered and uses the disputed domain name in bad faith.
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 <mabanque-carrefour.org> be transferred to the Complainant.
Date: July 17, 2017