WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Carrefour v. Jiang Yu Bo
Case No. D2018-2605
1. The Parties
The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
The Respondent is Jiang Yu Bo of Chengdu, China.
2. The Domain Name and Registrar
The disputed domain name <家乐福.购物> (xn--fjq893a8kx.xn--g2xx48c) is registered with Xiamen Nawang Technology Co., Ltd (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 14, 2018. On November 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 23, 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 November 23, 2018, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on November 26, 2018. The Respondent did not comment on the language of the proceeding.
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 November 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 20, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 21, 2018.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on January 16, 2019. 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 supermarket and hypermarket multinational, operating more than 12,300 stores and e-commerce sites in over 30 countries and regions, and employing more than 375,000 people worldwide, including in China. In 2017, Carrefour generated 88.24 billion euros in sales. In the Respondent’s home jurisdiction China, Carrefour operates over 220 hypermarkets and 39 Easy convenience stores, generating sales of 4.619 billion euros in 2017.
The Complainant owns a portfolio of trademark registrations for 家乐福 and CARREFOUR in China, including Chinese trademark registration 955522 (for 家乐福), registered on February 28, 1997 and Chinese trademark registration 3943616 (for the CARREFOUR device mark), registered on February 28, 2007. The Complainant also owns a portfolio of trademark registrations for CARREFOUR marks in other jurisdictions. Incidentally, the relevant registered trademarks adduced by the Complainant were successfully registered prior to the registration date of the disputed domain name, which was registered on June 22, 2018, and is currently linked to an inactive website.
On July 5, 2018, the Complainant sent a cease-and-desist letter to the Respondent by registered letter and email. The Complainant did not receive any response from the Respondent.
5. Parties’ Contentions
The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for 家乐福 and 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 consumer industry, provides evidence of its marketing materials and refers to prior domain name decisions (such as Carrefour v. Wuxi Yilian LLC, WIPO Case No. D2017-1763) in which it was held that the Complainant’s marks are well-known, also in China. Moreover, the Complainant provides evidence that the Respondent has registered a number of other famous brands including “可口可乐” (the Chinese character equivalent of Coca-Cola) under the “.购物” Top-Level Domain, alleging that this constitutes a pattern of abusive registrations. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the domain name and 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 proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The Complainant states that it could not locate the Registration Agreement, but that the language of the Registration Agreement is likely Chinese. The Complainant filed its Complaint in English, and requests that the language of proceedings be English.
The Panel has carefully considered all elements of this case, in particular, the Complainant's request that the language of proceedings be English; the lack of comment on the language of the proceeding and the lack of response of the Respondent (the Panel notes that the Respondent 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. In view of all these elements, the Panel rules that the language of proceedings shall be English.
6.2. Discussion and Findings on the merits
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 and arguments submitted, the Panel's findings are as follows:
A. Identical or Confusingly Similar
The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in both the signs CARREFOUR and 家乐福 (which is its Chinese equivalent), based on the use and registration of the same as trademarks, incidentally commencing prior to the registration of the disputed domain name.
Moreover, as to confusing similarity of the disputed domain name with the Complainant’s trademarks, the disputed domain name consists of only a single element, which is the Complainant’s 家乐福 trademark. According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.7, “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing” (see also Wal-Mart Stores, Inc. v Richard McLeod d/b/a For Sale, WIPO Case No. D2000-0662). The Panel concludes that the disputed domain name contains the entirety of the Complainant’s trademark, as its sole distinctive and dominant feature. The addition of the descriptive Top-Level Domain “.购物” (“.shopping”) does not prevent a finding of confusing similarity. See in this regard WIPO Overview 3.0, section 1.11: “The applicable Top Level Domain […] is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test”. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant's trademarks, and the first element required by the Policy is 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 Panel notes that the Respondent is not an authorized reseller, service provider or distributor, and is not making legitimate noncommercial use or fair use of the Complainant's trademarks. The disputed domain name is linked to an inactive website, the Panel therefore considers that none of the circumstances of legitimate interests envisaged by paragraph 4(c) of the Policy apply. This finding is reinforced by the fact that the Respondent ignored the Complainant’s cease-and-desist letter and its reminders. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply to the Complaint. When respondents do not avail themselves of their rights to respond to a cease-and-desist letter or complaint, it can be assumed that respondents have no rights or legitimate interests in the disputed domain name under the second element (see also Inter-IKEA Systems B.V. v. Evezon Co. Ltd., WIPO Case No. D2000-0437; Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim, WIPO Case No. D2003-0269). 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 trademarks, the registration of the disputed domain name, which incorporates such trademarks in their entirety, was clearly intended, from the outset, to mislead and divert consumers to the disputed domain name. The Complainant’s trademarks predate the registration date of the disputed domain name, which was registered in 2018. Even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned, and owns, trademarks in 家乐福 and CARREFOUR and uses these marks extensively, including in the Respondent’s home jurisdiction China, where, according to the Complainant’s evidence, it operates over 220 hypermarkets and 39 easy convenience stores, generating sales of over 4 billion euros. 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 disputed domain name links to an inactive website. In this regard, the WIPO Overview 3.0 provides: “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 fact that the only distinctive element in the disputed domain name is the Complainant’s trademark, the high degree of distinctiveness and reputation of the Complainant’s trademark, even in the Respondent’s home jurisdiction China, the fact that the Complainant provides evidence of a pattern of abusive domain name registrations by the Respondent, and the fact that the Respondent ignored the Complainant’s cease-and-desist letter and the Complaint, the Panel rules that it has been demonstrated that the Respondent has used, and is using the disputed domain names in bad faith.
Finally, the Respondent has failed to provide any response or evidence to 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 <家乐福.购物> (xn--fjq893a8kx.xn--g2xx48c) be transferred to the Complainant.
Deanna Wong Wai Man
Date: January 29, 2019