Westmore · UDRP DecisionCarefoursa.com
The Panel ordered cancellation of <carefoursa.com>. It found the domain confusingly similar to Carrefour’s CARREFOUR mark because it was a typosquatted variation deleting one letter “r,” while the addition of “sa” and the “.com” suffix did not avoid confusion. The Respondent had no demonstrated rights or legitimate interests, and use of the domain for a PPC parking page targeting the trademark’s value supported findings of bad-faith registration and use.
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The decision illustrates how a small typographical alteration combined with a corporate-form abbreviation can increase rather than reduce confusing similarity. It also shows the significance of PPC parking-page use where the domain’s attraction derives from a well-known trademark and the respondent provides no alternative explanation.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Carrefour v. XL Liu Case No. D2015-1429 1. The Parties The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France. The Respondent is XL Liu of Hangzhou, Zhejiang, China. 2. The Domain Name and Registrar The disputed domain name <carefoursa.com> (the “Disputed Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2015. On August 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On August 14, 2015, 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 August 21, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 10, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 11, 2015. The Center appointed Neil J. Wilkof as the sole panelist in this matter on October 9, 2015. 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 inter alia has the following trademark registrations: International Trademark CARREFOUR, Registration No. 1,010,661, in international class 35, dated April 16, 2009, designating China. Chinese Trademark CARREFOUR, Registration No. 788,489, in international class 11, dated November 7, 1995. The Disputed Domain Name, <carefoursa.com>, was registered on October 1, 2014 and resolves to a pay-per-click (PPC) parking page. 5. Parties’ Contentions A. Complainant The Complainant is a leading multi-format, multi-channel, multi-location retailer and, over a 50-year period, it has grown from its initial operations in France to become the second-largest retailer in the world. As of 2014, it operated more than 10,800 stores in 34 countries, including in China, under the CARREFOUR mark and name (hereinafter “CARREFOUR” or “the Mark”). The Complainant gives priority to sourcing products locally in each region in which it operates, including in China. In 2014, the Complainant generated annual revenues worldwide of over EUR 100 billion. Previous UDRP panels have found that CARREFOUR is a famous mark (see, e.g. , Carrefour v. VistaPrint Technologies Ltd ., WIPO Case No. D2015-0769 and Carrefour v. Park KyeongSook , WIPO Case No. D2014-1425 ). The Complainant became aware that the Respondent had registered the Disputed Domain Name, which resolves to a PPC parking page containing related links. In an effort to settle the matter amicably, the Complainant sent a cease-and-desist letter on November 12, 2014, requesting that the Respondent cease its use of the Disputed Domain Name and cancel its registration. Despite several reminders, no response was ever received from the Respondent. Accordingly, the Complainant filed the instant UDRP procedure, seeking the cancellation of the Disputed Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Respondent has failed to respond to the Complaint. Therefore, the Panel may accept all reasonable allegations set forth by the Complainant as true and accurate. According to paragraph 4(a) of the Policy, the Complaint must prove the following: (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 the Disputed Domain Name. (iii) The Disputed Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar The Disputed Domain Name incorporates the Mark in its entirety except for the deletion of the letter “r”. This difference is material. Slightly altering the mark of the complainant in a disputed domain name in such a manner has been called “typosquatting” and previous UDRP panels have found such typosquatting to create confusing similarity to the mark of the complainant. That is the situation here. The addition of the letters “sa” does not dispel the confusing similarity. The two-letter combination “sa” per se has little distinctive power. Moreover, it is recognized that a person encountering a name or mark is likely to give greater attention to the dominant or principal part thereof. Here, as stated, the first part of the Disputed Domain Name is virtually identical to the CARREFOUR mark. Further, this Panel takes notice of the fact that “sa” is the abbreviation in French of the words “société anonyme”, which signify a public limited company, similar to the use of “inc” in common-law countries. It is appreciated that “inc” has no distinctive power when used in combination with the rest of a name, and the same conclusion applies with respect to the use of “sa” as part of the Disputed Domain Name. Indeed, the connection between “sa”, as designating a French public limited company, and the Complainant, popularly identified with its French corporate roots, strengthens the confusing similarity between the Disputed Domain Name and the Mark. The addition of the generic Top-Level Domain (“gTLD”) suffix in this case “.com” has long been held to be bereft of any distinctive power in determining whether a mark is confusingly similar to a disputed domain name. As stated by the panel in Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil , WIPO Case No. D2000-1409 , “neither the addition of an ordinary descriptive word nor the suffix ‘.com’ detracts from the overall impression of the dominant part of the name, namely the trademark SONY”. Having regard to the CARREFOUR the same conclusion applies to the instant situation. Based on the foregoing, the Panel finds that the Disputed Domain Name is confusingly similar to the Mark. B. Rights or Legitimate Interests There is no evidence that the Respondent has registered any mark that consists of, or contains, the Mark, or any material portion thereof. The Respondent’s name does not bear any resemblance to the Disputed Domain Name nor is there any basis to conclude that the Respondent is commonly known by the Mark or the Disputed Domain Name. There is no evidence that the Complainant has entered into any agreement, authorization or license with the Respondent with respect to the use of the Mark or that the Respondent has ever been authorized to serve as a franchisee of the Complainant. Having regard to the three non-exclusive circumstances set out in paragraph 4(c) of the Policy, on the basis of which a respondent may support a claim that it has rights or legitimate interests in the disputed domain name, the Respondent has not submitted any response to support such a claim. The Respondent does not use the Disputed Doman Name in connection with a bona fide offering of goods or services nor is the Respondent making any legitimate noncommercial or fair use of the Disputed Domain Name. Based on the foregoing, the Panel finds that the Respondent has no rights or legitimate interests in the Mark. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances that point to bad faith registration and use on the part of the respondent, as follows: (i) circumstances indicating that the respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) the respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other on-line location, by creating a likelihood of confusion with the 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 the respondent’s website or location. Under the circumstances, the Respondent’s selection of the Disputed Domain Name including the Mark supports the conclusion that the Respondent has acted in bad faith. The Respondent registered the Disputed Domain Name only in 2014, substantially after the Complainant registered the Mark. Previous UDRP panels have found CARREFOUR to be a famous mark. As stated by the panel in The American Automobile Association Inc. v. Sompop Padungkijjaroen , WIPO Case No. D2012-2168 , “[g]iven the distinctive nature of the Complainant’s AAA Marks and the reputation of the mark, it is inconceivable to the Panel that the Respondent registered the disputed domain name without prior knowledge of the Complainant or without the intention of targeting the Complainant”. These words apply equally in the instant situation. With respect to the use of the Disputed Domain Name, Annex 1 to the Complaint contains the screenshot of a PPC parking page, to which the Disputed Domain Name resolves. Such use of the Disputed Domain Name by the Respondent indicates an intention to attract Internet users to its website for commercial gain by taking advantage of the Complainant’s reputation in connection with the CARREFOUR Mark. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.6 , states that use of a domain name to post parking and landing pages or PPC links are viewed as unfair use of the Complainant’s mark, “where such links are based on trademark value…resulting in misleading diversion”. There is a reasonable likelihood that an Internet user will be confused into thinking that there is a connection between the Complainant and this website. The foregoing supports the conclusion that use of the Disputed Domain Name has been made in bad faith. Based on all of the foregoing, the Panel finds that the Respondent has registered and is using the Disputed Domain Name in bad faith. 7. Decision 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 <carefoursa.com> be cancelled. Neil J. Wilkof Sole Panelist Date: October 27, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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