WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Carrefour v. Ye Mao
Case No. D2018-0719
1. The Parties
The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
The Respondent is Ye Mao of Changzhou, Jiangsu, China.
2. The Domain Name and Registrar
The disputed domain name <carrefour.fun> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on March 30, 2018. On April 3, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 4, 2018, 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 April 6, 2018, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on the same day. The Respondent did not comment on the language of the 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 April 16, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 6, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 7, 2018.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on May 14, 2018. 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, Carrefour, is one of the leading retailers in the world. Carrefour operates more than 12,000 stores and e-commerce sites in more than 30 countries. Carrefour also has a large presence in China, with over 200 hypermarkets operating in Mainland China.
The Complainant owns a number of trademark registrations (word marks) for CARREFOUR in various jurisdictions, including in China (including Chinese trademark registration no. 795806, registered on November 28, 1995). Moreover, the Complainant also owns a number of domain names including <carrefour.com>. All registered trademarks and domain names adduced by the Complainant were successfully registered prior to the registration date of the disputed domain name, which was registered on October 28, 2017. The disputed domain name resolves to an inactive website.
The Complainant has provided evidence that it has attempted to reach an amicable settlement with the Respondent, but no response was obtained.
5. Parties’ Contentions
The Complainant essentially contends that the disputed domain name is identical or confusingly similar to its prior trademarks for CARREFOUR, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and is being used in bad faith.
The Complainant claims that its trademarks are famous and well-regarded in the retail and consumer industry. The Complainant provides evidence to show that its CARREFOUR trademarks have developed a substantial reputation and recognition worldwide, including in China, and provides a number of prior UDRP decisions that have recognised its CARREFOUR trademarks as “well-known” or “famous”.
The Complainant also provides evidence that the disputed domain name is linked to an inactive website, and claims that this constitutes passive holding of the disputed domain name by the Respondent. The Complainant essentially contends that the Respondent has nevertheless maintained the disputed domain name to prevent the Complainant to register its CARREFOUR trademarks as a domain name in that particular extension. The Complainant contends that such use constitutes use in bad faith.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Preliminary Issue: Language of proceedings
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceedings shall be the language of the Registration Agreement. However, the panel is given the authority to determine a language of proceeding other than the language of the Registration Agreement, taking into account the circumstances of every individual case.
The Registrar confirmed with the Center that the Registration Agreement of the disputed domain name is in Chinese. The Complainant requests that English be the language of the proceeding on the basis, inter alia, that the disputed domain name includes only Latin characters, the Complainant has no knowledge of Chinese, and that it would impose a burden on the Complainant to translate the Complaint into Chinese.
Therefore, in view of all elements of this case, being, in particular, the fact that the Complainant’s request; the lack of response of the Respondent (such that there will be no prejudice to the Respondent, who had the opportunity to put forward arguments in either English or Chinese) and the fact that Chinese as the language of proceedings could lead to unwarranted delay and costs for the Complainant, the Panel rules that the language of proceedings shall be English.
6.2. Substantive Issues
The Policy requires the Complainant to prove three elements:
(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.
Based on the evidence submitted, the Panel’s findings are as follows:
A. Identical or Confusingly Similar
The Panel finds that the Complainant has shown that it has valid rights in the sign CARREFOUR based on its use and registration of the same as a trademark.
Moreover, the disputed domain name is identical to the Complainant’s trademark CARREFOUR, incorporating it in its entirety. The generic Top-Level Domain (“gTLD”) “.fun” does not differentiate the disputed domain name from the Complainant’s trademark. Indeed, according to WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11, “the top level domain in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test”.
Accordingly, the Panel finds that the disputed domain name is identical to the Complainant’s trademark and rules that the first element required by the Policy has been fulfilled.
B. Rights or Legitimate Interests
The Complainant has demonstrated that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not granted any license or permission for the Respondent to regiser the disputed domain name fully incorporating the Complainant trademarks. As stated before in Pharmacia & Upjohn Company v. Moreonline, WIPO Case No. D2000-0134, “mere registration does not establish rights or legitimate interests in the disputed domain name”. The Panel notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel notes that no apparent active use is being made of the disputed domain name, and that none of the circumstances giving rise to any rights or legitimate interests, as envisaged by paragraph 4(c) of the Policy, would appear to apply. The Panel therefore rules that the Complainant has satisfied the requirements of the second element under the Policy.
C. Registered and Used in Bad Faith
Given the reputation and fame of the Complainant’s trademark, the registration of the disputed domain name is clearly intended to mislead and attract consumers to the disputed domain name. This finding is even reinforced by the fact that the disputed domain name <carrefour.fun> is virtually identical to the Complainant’s official domain name <carrefour.com>, thereby facilitating search and typing errors by Internet users and diverting them from the Complainant’s official site. In the Panel’s view, this clearly indicates the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith.
As to use of the disputed domain name in bad faith, the WIPO Overview 3.0 states in this regard: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding”. Having regard to all elements of the case at hand, and in particular to the identity between the Complainant’s trademark and the disputed domain name, the distinctiveness and reputation of the Complainant’s trademark and the Respondent’s provision of false contact details in the WhoIs records for the disputed domain name, the Panel rules that it has been demonstrated that the Respondent has used, and is using the disputed domain name in bad faith.
Moreover, the Respondent has failed to provide any response or evidence to otherwise establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under the Policy.
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 <carrefour.fun> be transferred to the Complainant.
Deanna Wong Wai Man
Date: May 17, 2018