WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Association des Centres Distributeurs E. Leclerc - A.C.D Lec v. Milen Radumilo
Case No. D2017-2003
1. The Parties
Complainant is Association des Centres Distributeurs E. Leclerc - A.C.D Lec, of Ivry-sur-Seine, France, represented by Inlex IP Expertise, France.
Respondent is Milen Radumilo of Bucharest, Romania.
2. The Domain Name and Registrar
The disputed domain name <wwwleclerc.com> is registered with Gal Communications (CommuniGal) Ltd. d/b/a Galcomm (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 13, 2017. On October 13, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 29, 2017, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on October 30, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 19, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on November 20, 2017.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on December 4, 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
Complainant is an association of independent super and hypermarket stores under the laws of France named after its founder Edouard Leclerc.
Complainant has provided evidence that it is the owner of the European Union trade mark (word mark) registration LECLERC, Registration No. 002700656, registered on February 26, 2004, status: active.
Besides, Complainant obviously owns a number of domain names relating to the term "Leclerc", e.g., <e‑leclerc.com> as well as <leclercdrive.fr>.
Respondent, a resident of Romania, registered the disputed domain name June 12, 2017, which resolves to a standardized pay-per-click ("PPC") parking site at "www.wwwleclerc.com" providing for a variety of hyperlinks to both Complainant's as well as third parties' websites.
Complainant requests that the disputed domain name be transferred to Complainant.
5. Parties' Contentions
Complainant contends that its LECLERC trademark has been widely used for many years in connection with a chain of super and hypermarket stores which are nowadays particularly well known in France and in several other European countries. The LECLERC trademark refers to the name of the founder and promoter Edouard Leclerc and has no other meaning in the French or English language.
Complainant submits that the disputed domain name is confusingly similar to Complainant's LECLERC trademark as it incorporates the latter in its entirety with the mere addition of the functional prefix "www" which stands for "World Wide Web" and constitutes an intentional typo-squatting.
Moreover, Complainant asserts that Respondent has no rights or legitimate interests with respect to the disputed domain name since (1) Respondent has not been authorized by Complainant to use the LECLERC trademark nor is there any business relationship between the Parties to this case, (2) Respondent is neither commonly known under the LECLERC trademark nor is his name composed of this term and Respondent apparently has no rights in the term "Leclerc" himself and (3) Respondent neither makes use of the disputed domain name in connection with a bona fide offering of goods or services nor in a legitimate noncommercial or fair context, but rather to resolve to a standardized PPC parking page.
Finally, Complainant argues that Respondent registered and is using the disputed domain name in bad faith since; (1) the registration of the disputed domain name constitutes an intentional typo-squatting of the LECLERC trademark indicating that Respondent precisely knew about Complainant's trademark and activities when registering the disputed domain name and (2) redirecting the disputed domain name to a standardized PPC parking site in order to receive PPC commissions means to take advantage of the well-known character of Complainant's LECLERC trademark by diverting consumers looking for Complainant's products and services to Respondent's website that is associated to the disputed domain name.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant carries the burden of proving:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
Respondent's default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(f) of the Rules provides that if Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute solely based upon the Complaint. Further, the Panel may draw such inferences as are appropriate from Respondent's failure to submit a Response.
A. Identical or Confusingly Similar
The Panel concludes that the disputed domain name <wwwleclerc.com> is confusingly similar to the LECLERC trademark in which Complainant has rights.
The disputed domain name incorporates the LECLERC trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see, e.g., PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS), WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.8), that the addition of a generic or descriptive term to a trademark in a domain name is normally insufficient, in and of itself, to avoid the finding of confusing similarity under the first element of the UDRP. Accordingly, the Panel finds that the mere addition of the prefix "www" (for "World Wide Web") is not at all capable to dispel the confusing similarity arising from the incorporation of Complainant's LECLERC trademark into the disputed domain name. Such finding is reinforced by the fact that the disputed domain name obviously includes a popular typo-squatting (arising from the omission of the standard dot behind "www") and that typo-squatted domain names are in fact intended to be confusing so that Internet users, who unwillingly make common type errors, will enter the typo-squatted domain name instead of the correctly spelled trademark (see, e.g., National Association of Professional Baseball Leagues, Inc., d-b-a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011).
Therefore, Complainant has established the first element under the Policy set forth by paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Panel is further convinced on the basis of Complainant's undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain.
Respondent has not been authorized to use Complainant's LECLERC trademark, either as domain name or in any other way. Also, there is no reason to believe that Respondent's name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with the name "Leclerc". Rather, Respondent is using the disputed domain name to resolve to a standardized PPC parking site at "www.wwwleclerc.com" which, in turn, redirects Internet users to a variety of third-party websites connecting, inter alia, to Complainant's official websites as well as to websites of some of Complainant's direct competitors. The Panel, therefore, concludes that the disputed domain name – irrespective of the alleged reputation of the LECLERC trademark throughout France and the European Union – obviously alludes to Complainant's LECLERC trademark and that Respondent is using the disputed domain name to seek PPC revenues from those diverted Internet users who are trying to reach Complainant, but due to the confusing similarity of the disputed domain name with Complainant's LECLERC trademark end up with Respondent's website instead. Such use of the disputed domain name is neither noncommercial because it has the predominant purpose of generating advertising revenues, nor is it fair because Internet users by confusion are brought to a general website with information about a variety of businesses and services that are not specifically tailored to Complainant, but rather link to some of Complainant's competitors instead.
Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview 3.0, section 2.1). Given that Respondent has not submitted a Response, Respondent has not met that burden.
Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy.
C. Registered and Used in Bad Faith
The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.
The Panel takes the view that the redirection of the disputed domain name, which is confusingly similar to Complainant's LECLERC trademark, by means of a typical typo-squatting to a generic PPC website in order to generate pay-per-click revenues without Complainant's permission to do so, is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to his own website, by creating a likelihood of confusion with Complainant's LECLERC trademark as to the source, sponsorship, affiliation or endorsement of Respondent's website. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that Complainant has also satisfied the third element under the Policy as set forth by paragraph 4(a)(iii).
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 <wwwleclerc.com> be transferred to Complainant.
Stephanie G. Hartung
Date: December 11, 2017