WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Carrefour v. Haimin Xu
Case No. D2019-2087
1. The Parties
The Complainant is Carrefour, France, represented by Dreyfus & associés, France.
The Respondent is Haimin Xu, China.
2. The Domain Name and Registrar
The disputed domain name <cerrefour.com> is registered with DropCatch.com LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 28, 2019. On August 28, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 28, 2019, 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.
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 of the Complaint, and the proceedings commenced on September 2, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 22, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 23, 2019.
The Center appointed Angela Fox as the sole panelist in this matter on September 30, 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 well-known hypermarket operator, based in France but with more than 12,000 stores and e-commerce sites in more than 30 countries. It employs more than 360,000 people worldwide and in 2018 alone generated EUR 84.91 billion worth of sales. It has some 13 million customers around the world, and has been in business for more than 50 years.
The Complainant’s stores operate under the name and trademark CARREFOUR. Annexed to the Complaint were details of the following trademark registrations owned by the Complainant for CARREFOUR:
- European Union Trademark N° 005178371, filed on June 20, 2006 and registered on August 30, 2007, in Classes 9, 35 and 38;
- European Union Trademark N° 008779498, filed on December 23, 2009 and registered on July 13, 2010, in Class 35;
- International Registration N° 353849, protected in, inter alia, Benelux, Montenegro, Czech Republic, Morocco, Slovenia, Slovakia, Lithuania and Hungary, registered on February 28, 1969, in Classes 35, 36, 37, 38, 39, 40, 41 and 42;
- Chinese Trademark N° 789820, filed on January 13, 1994, registered on November 07, 1995, in Class 35;
- Chinese Trademark N° 795806, filed on February 25, 1994, registered on November 28, 1995, in Class 35; and
- Chinese Trademark N° 8696287, filed on September 25, 2010, registered on November 07, 2011, in Class 35.
In addition, the Complainant carries out its business on Internet websites that make use of domain names incorporating CARREFOUR, including in particular <carrefour.com>, registered on October 25, 1995, and <carrefour.fr>, registered on June 23, 2005.
The disputed domain name was registered on 21 June 2019. The Respondent is a Chinese individual. The disputed domain name has been used to host a web page offering what appear to be pay-per-click (“PPC”) links including to the Complainant and competitors of the Complainant in the hypermarket and shopping field. The Complainant’s representatives sent a cease and desist letter to the Respondent by email on June 24, 2019, requiring the transfer of the disputed domain name, but no reply was received. The Complainant filed this administrative proceeding on August 28, 2019.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to its registered trademark CARREFOUR, differing only by the substitution of an “e” for the “a”. Indeed, the Complainant avers that the disputed domain name is in fact a deliberate misspelling of the CARREFOUR trademark, i.e. “typosquatting”.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Respondent is not affiliated with or authorized by the Complainant to use the disputed domain name, nor has the Respondent been known by the disputed domain name. The Complainant avers that the use the Respondent has made of the disputed domain name is not a bona fide offering of goods or services, since it is inherently misleading and is being used to host PPC links including to competitors of the Complaint. The Complainant also suggests that the disputed domain name has been registered for the purpose of being used in a phishing scheme.
Finally, the Complainant states that the disputed domain name was registered and is being used in bad faith. The Complainant contends that the Respondent must have been aware of the CARREFOUR brand because of its international reputation, and points to the presence of a CARREFOUR link on the web page linked to the disputed domain name as further evidence of the Respondent’s knowledge. The Complainant argues that the Respondent’s registration constitutes bad faith “typosquatting” deliberately designed to target the Complainant and its brand. The Complainant also submits that by its use of the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant, in breach of paragraph 4(b)(iv) of the Policy.
Lastly, the Complainant says that there is an email server associated with the disputed domain name, which it argues creates a risk that the Respondent is engaged in a phishing scheme.
The Respondent did not reply to the Complainant’s contentions and is in default. No exceptional circumstances explaining the default have been put forward. Therefore, in accordance with paragraphs 14 (a) and (b) of the Rules, the Panel will decide the Complaint and shall draw such inferences as it considers appropriate from the Respondent’s default.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the panel finds that:
(i) the 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 the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
All three elements must be present before a complainant can succeed in an administrative proceeding under the Policy.
A. Identical or Confusingly Similar
The Complainant has proved that it owns registered trademark rights in CARREFOUR.
The CARREFOUR trademark is recognizable within the disputed domain name, which differs only in the substitution of the letter “e” for the letter “a” and the addition of the non-distinctive domain name suffix “.com”. Moreover, “Cerrefour” is a predictable misspelling of CARREFOUR, and the disputed domain name is therefore inherently likely to attract Internet users looking for the Complainant’s site. Indeed, the differences are so minor that Internet users encountering the disputed domain name may not notice them at all.
The Respondent’s registration of the disputed domain name appears to constitute “typosquatting,” namely the registration of domain names that consist of common or predictable misspellings of third-party trademarks in order to attract Internet traffic intended for a complainant (see inter alia Wachovia Corporation v. American Consumers First, WIPO Case No. D2004-0150; Red Bull GmbH v. Grey Design, WIPO Case No. D2001-1035; Playboy Enterprises International Inc. v. SAND WebNames – For Sale, WIPO Case No. D2001-0094; and Telstra Corporation Ltd. v. Warren Bolton Consulting Pty. Ltd., WIPO Case No. D2000-1293).
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered CARREFOUR trademark.
B. Rights or Legitimate Interests
The burden of proving absence of a right or legitimate interest in a domain name falls on complainants, but UDRP Panels have long recognised that the information needed to prove such a right or legitimate interests is normally in the possession of respondents.
In order to avoid requiring complainants to prove a negative, which will often be impossible, panels have typically accepted that once a complainant has established a prima facie case that a respondent lacks rights or legitimate interests, the respondent carries the burden of showing that he/she does indeed have such a right or interest (see, inter alia, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110). In the present case, the Complainant has put forward a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. There is nothing on the record to indicate that the Respondent might enjoy such a right or legitimate interest, nor has the Respondent attempted to make one out.
It is apparent from the annexes to the Complaint that the Respondent has been using the disputed domain name to host what appear to be PPC links. These include links to “Carrefour”, “Kaufland” and other shopping and hypermarket brands. The presence of the “Carrefour” link in particular, and its appearance on a page hosting links solely or primarily to other hypermarket and shopping brands, indicates that the Respondent was aware of the Complainant and its existing business when it registered the disputed domain name, and that the disputed domain name was registered with the aim of attracting traffic and generating income arising from Internet users mistaking the disputed domain name for that of the Complainant. Such use does not, in the Panel’s view, give rise to a right or legitimate interest in the disputed domain name and is manifestly not a legitimate noncommercial or fair use.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Under paragraph 4(b)(iv) of the Policy, the Panel may find both registration and use in bad faith where there is evidence that by using the domain name, a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with a complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on it.
In this case, there is evidence that the Respondent deliberately set out to derive PPC revenue by creating a likelihood of confusion with the Complainant's CARREFOUR trademark. The Respondent adopted a confusingly similar domain name which is a predictable misspelling of the Complainant’s trademark and has used it to host PPC links related to the Complainant as well as to third-party websites offering services that compete with those of the Complainant. Such conduct is inherently misleading and in the Panel’s view is evidence of bad faith.
Clearly if there were evidence that the Respondent had used or was preparing to use the disputed domain in connection with a phishing scheme, that would also support a finding of registration and use in bad faith (referring to Accor SA v. Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyProtect.org / Yogesh Bhardwaj, WIPO Case No. D2017-1225). The existence of an email server connected with the disputed domain name is, in the panel’s view, a relevant fact in this regard given the reputation of the CARREFOUR mark, the inherently misleading nature of the disputed domain name and the prevalence of online fraud. As the Complainant suggests, it is easy to imagine emails emanating with a “cerrefour.com” address being mistaken as emanating from the Complainant’s “carrefour.com” address, and for recipients of such emails to divulge personal or financial information in the mistaken belief that they are dealing with the Complainant. The Respondent has provided no alternative explanation of its conduct. Although there is no evidence that the disputed domain name has in fact been used in connection with phishing, the Panel has concluded that, in the totality of circumstances, there is no plausible case for any form of good faith use by the Respondent.
The Panel finds that the Respondent registered and has used 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 <cerrefour.com> be transferred to the Complainant.
Date: October 24, 2019