WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MIGROS-Genossenschafts-Bund v. 1&1 Internet Limited / Hubert Dadoun
Case No. D2017-1924
1. The Parties
The Complainant is MIGROS-Genossenschafts-Bund of Zürich, Switzerland, represented by SILKA Law AB, Sweden.
The Respondent is 1&1 Internet Limited of Gloucester, United Kingdom of Great Britain and Northern Ireland / Hubert Dadoun of Paris, France.
2. The Domain Name and Registrar
The disputed domain name <migrosfrance.com> is registered with 1&1 Internet AG (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2017. On October 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 11, 2017, 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 October 11, 2017 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 amendment to the Complaint on October 12, 2017.
The Center verified that the Complaint together with the amendment to 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 of the Complaint and the amendment to it, and the proceedings commenced on October 12, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 1, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 3, 2017.
The Center appointed Adam Samuel as the sole panelist in this matter on November 10, 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 Complainant is an umbrella organization of regional co-operative supermarkets in Switzerland. It owns a number of Swiss trademarks for MIGROS, including no. p-405500, registered on September 20, 1993. It offers its products through a number of domain names, notably, <migros.com>, registered on February 9, 1998.
The disputed domain name was registered on September 22, 2017. The website at the disputed domain name is currently inactive.
5. Parties’ Contentions
The disputed domain name incorporates the Complainant’s well-known trademark. The addition of the term “France” and “.com” do not distinguish the disputed domain name from the Complainant’s trademark.
There has been no bona fide offering of goods or services by the Respondent. Nor is the Respondent known by the name, “Migros”.
The disputed domain name tends to induce consumers into visiting the related website under the misapprehension that the website is endorsed by the Complainant. Originally, the disputed domain name redirected Internet users to the Complainant’s official French website.
A fake e-mail address was used involving the name of a real employee of the Complainant but using the fake “@migrosfrance.com” ending. This sent e-mails to suppliers to purchase goods on account.
The prominence of the Complainant makes it unlikely that the Respondent was unaware of the unlawful nature of the disputed domain name’s unlawful registration.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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 disputed domain name consists of the Complainant’s trademark, the country “France” which borders Switzerland where most of the Complainant’s activity occurs and the generic Top-Level Domain (“gTLD”) “.com”. The addition of “France” to the Complainant’s trademark does not prevent the disputed domain name from being confusingly similar to the Complainant’s trademark since the predominant feature of the disputed domain name is the Complainant’s trademark. The gTLD is irrelevant here because it does not affect the meaning of the disputed domain name. For all these reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
The Respondent is not called “Migros” or anything similar. There is no evidence that the Complainant has ever authorized the Respondent to use its trademark. For these reasons, and in the absence of any response on this point, notably one contradicting the Complainant’s claim that the Respondent has never been connected to it in any way, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
On September 26, 2017, four days after the disputed domain name’s registration, someone sent an e-mail from an address that combined the name of one of the Complainant’s senior employees and “@migrosfrance.com”. It purported to seek to purchase products on credit for distribution by the Complainant. This suggests strongly fraud by the Respondent and an intention when registering the disputed domain name four days earlier to do this in order to commit fraud.
The fact that the disputed domain name used to revert to a website of the Complainant’s indicates that the Respondent knew of the Complainant and registered the disputed domain name to take advantage of the Complainant’s trademark. The September 26, 2017 email suggests that the Respondent wished to do this for bad faith purposes.
For these reasons, the Panel concludes that the disputed domain name was registered and is being used 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, <migrosfrance.com> be transferred to the Complainant.
Date: November 17, 2017