WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Carrefour v. Kerim Coskun
Case No. D2017-1618
1. The Parties
1.1 The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.
1.2 The Respondent is Kerim Coskun of Antalya, Turkey.
2. The Domain Names and Registrar
2.1 The disputed domain names <carfoursa.market> and <carrefoursa.market> (the “Domain Names”) are registered with 101domain GRS Limited (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2017. On August 18, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On August 25, 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.
3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 4, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 24, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 25, 2017.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on September 29, 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
4.1 The Complainant is the second largest retailer in the world. It is based in France but now operates in 30 countries; launching in Brazil in 1975, Turkey in 1993 and China in 1995. Sales in 2016 were in excess of EUR 100 billion.
4.2 The Complainant owns various registered trade marks around the world that comprise of incorporate the “Carrefour” name. They include:
(i) European trade mark no. 005178371, registered on August 30, 2007 in classes 9, 35 and 38 for the word mark CARREFOUR; and
(ii) International trade mark no. 1010661, registered on April 16, 2009 in class 35 and which subsequently proceeding to grant in various countries, including Turkey.
4.3 The Domain Name <carfoursa.market> was registered on November 5, 2014 and the Domain Name <carrefoursa.market> was registered on January 6, 2017. Each of the Domain Names has been used for a Turkish language website that offers for sale various household products.
4.4 The Respondent would appear to be an individual located in Turkey. On February 1, 2017 the Complainant’s representatives wrote to the Respondent demanding that the Domain Names be transferred to the Complainant and followed this letter up with reminders a week and then two weeks later. The Complainant received no response to that letter.
4.5 No website is operating from either of the Domain Names as at the date of this decision.
5. Parties’ Contentions
5.1 The Complainant describes its business and marks. It contends that the Domain Name <carrefoursa.market> would be read as the Complainant’s trade mark combined with the letters “sa”, and that the letters “sa” would be understood as the acronym for the French legal form of company “société anonyme”. It is claimed that the Domain Name <carfoursa.market> would be similarly understood, with the omission of the letters “r” and “e” not significantly affecting the appearance or pronunciation of the Domain Name.
5.2 Given this, the Complainant contends that the Domain Names are similar or identical to the Complainant’s marks, with the generic Top-Level Domain (“gTLD”) “.market” increasing the confusing similarity, since the term “market” is one that is closely associated with the Complainant’s marks.
5.3 The Complainant asserts that the Respondent has not been authorised to use the Complainant’s marks and is not known by the name “Carrefour”. It further contends that the use made of its CARREFOUR mark in the Domain Names does not involve a bona fide offering of goods and services, and that the Respondent is instead trying to misleadingly divert customers to its website for commercial gain. It also claims that it is “likely” that the Respondent uses the Domain Names “to sell fake goods”.
5.4 The Complainant also contends that email servers have been configured on the Domain Names and that “there might be a risk that [the] Respondent is engaged in a phishing scheme”.
5.5 This and the fact that the Respondent did not respond to the Complainant’s representative’s correspondence, is said to establish that the Respondent does not have a legitimate interest in the Domain Names.
5.6 The Complainant also alleges that given the reputation of its marks and the use made of the Domain Names after registration, the Respondent must have been aware of the Complainant’s marks when each of the Domain Names was registered and that it follows that the Domain Names were both registered in bad faith. The Complainant also contends that under section 2 of the ICANN Policy “it was [the Respondent’s] duty to verify that the registration of the [Domain Names] would not infringe the rights of any third party before registering the [Domain Names]”.
5.7 The Complainant also contends that the <carfoursa.market> Domain Name is an instance of “typosquatting” and that this also constitutes evidence of bad faith.
5.8 The Complainant also provides evidence to the effect that that the Respondent has registered in excess of 100 domain names, some of which are said to replicate the trade marks of the Complainant’s competitors in Turkey.
5.9 The actual use of the Domain Names and in particular the content of the website that operated from the Domain Names, is also said to demonstrate bad faith use. It also repeats the claim that the Respondent “might” be engaged in a bad faith phishing scheme.
5.10 The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 To succeed in these proceedings the Complainant must make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Names (paragraph 4(a)(ii)); and
(iii) the Domain Names have been registered and are being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.
A. Identical or Confusingly Similar
6.4 The Panel accepts that the Domain Names are confusingly similar to the Complainant’s registered CARREFOUR trade marks.
6.5 The <carrefoursa.market> Domain Name can only be sensibly read as the term “Carrefour” in which the Complaint has trade mark rights, combined with the letters “sa” and the “.market” gTLD. None of these additions so distract from or change the natural reading of the term “Carrefour” in the Domain Name so as to prevent a finding of confusing similarity for the purposes of the Policy (as to which see Research in Motion Limited v. One Star Global LLC, WIPO Case No. D2009-0227). Further, the Panel agrees with the Complainant’s contention that in this case the gTLD, which can be read as a reference to the Complainant’s business activities, actually increases the possibility of confusion.
6.6 The same is true of the <carefoursa.market> Domain Name. In this respect, the Panel accepts that the term “carefour” in the Domain Name would most likely be read as a misspelling of the Complainant’s mark.
6.7 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
6.8 For reasons that are addressed in greater detail under the heading of bad faith later on in this decision, the Panel accepts the Complainant’s claims that the Domain Names have been both registered and used for the purpose of using confusion between the Domain Names and the Complainant’s marks to divert Internet users to the Respondent’s websites, with a view to commercial gain. There is no right or legitimate interest in a domain name held for that purpose. Further where this is the case, then in the opinion of the Panel that will constitute positive evidence that a respondent has no right or legitimate interest in that domain name. In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy in the case of both Domain Names.
C. Registered and Used in Bad Faith
6.9 The Panel accepts that the Respondent was aware of the Complainant’s business and the marks under which it operated at the time that each of the Domain Names were registered. The reasons for this include the facts that the term “Carrefour” can only be understood as a reference to the Complainant and the degree of reputation of that mark.
6.10 Further, the Panel accepts that the Domain Names have been used for the purpose of using confusion between the Domain Names and the Complainant’s marks to divert Internet users to the Respondent’s websites, with a view to commercial gain. This is apparent from the facts that there is no obvious use of the term “Carrefour” in a domain name other than to refer in some manner to the Complainant’s marks and that the Respondent’s website have sought to offer for sale household goods. This is clearly activity that falls within the example of circumstances indicating bad faith registration and use set out in paragraph 4(b)(iv) of the Policy,
6.11 The Panel also accepts that as the term “Carfour” in the <carfoursa.market> Domain Name, can only sensibly be understood as a misspelling of the Complainant’s marks, that the Respondent is engaged in typosquatting and that this provides yet further evidence of the Complainant’s bad faith.
6.12 The Panel notes that the Complainant has also run arguments to the effect that under paragraph 2 of the Policy the Respondent had a duty to verify that the Domain Name did not infringe its rights. In so doing the Complainant appears to be pursuing an argument similar to that the subject of paragraph 3.2.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”) focusing on the concept of “willful blindness”. The use of paragraph 2 of the Policy in support of arguments in proceedings under the Policy has had a checkered history (see for example the comments in section 3.2.1 and 3.9 of the Overview), and the Panel is still somewhat sceptical that it performs a useful role in determining the scope of a registrant’s search “duties” before registration. But the Panel is more than satisfied that at all relevant times the Respondent had actual knowledge of the Complainant’s marks. Therefore, the question of the scope of a respondent’s search duties does not arise in this case and it is not necessary to explore this point any further in this decision.
6.13 Further, the Panel has taken little account of the Complainant’s assertions that the goods sold on the Respondent’s website might have been counterfeit or that because the Domain Names have been set up in such a way that they can be used to send and receive emails the Respondent may have been engaged in phishing. No real reasoning or evidence is offered to support these contentions and they appear to be little more than speculative assertion.
6.14 However, none of this makes any difference given that this case is otherwise a relatively straight forward case of bad faith registration and use. Accordingly, the Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy.
7.1 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 names <carfoursa.market> and <carrefoursa.market> be transferred to the Complainant.
Matthew S. Harris
Date: October 3, 2017