Westmore · UDRP DecisionCarrefourgourmet.com
The Panel ordered transfer of <carrefourgourmet.com>. It found the domain confusingly similar to the CARREFOUR mark because it reproduced the mark in full and added the descriptive term “gourmet,” a term also used by the Complainant for its supermarket activities. The Respondent lacked rights or legitimate interests because she was neither affiliated with nor authorized by the Complainant, and the domain resolved to a parking page containing commercial links to the Complainant and competitors. Bad-faith registration and use were found based on the reputation of CARREFOUR in France, the Respondent’s apparent awareness of the Complainant and its Carrefour Gourmet trade name, the commercial parking links, and retention of the domain after notice of the Complainant’s rights.
The timeline behind carrefourgourmet.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind carrefourgourmet.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates a strong combination-mark case in which adding a descriptive term increased association because the term was also used by the trademark owner in the relevant line of business. It also shows how a commercial parking page, links involving the complainant and competitors, geographic proximity to a reputed mark, and failure to rebut a prima facie case can collectively support transfer.
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. Lena Hormat Case No. D2017-2264 1. The Parties The Complainant is Carrefour of Boulogne-Billancourt, France, represented by Dreyfus & associés, France. The Respondent is Lena Hormat of Paris, France. 2. The Domain Name and Registrar The disputed domain name <carrefourgourmet.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 15, 2017. On November 15, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 15, 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. 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 November 22, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 12, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 18, 2017. The Center appointed William Lobelson as the sole panelist in this matter on January 15, 2018. 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 Carrefour Group is the leading retailer in Europe and the second-largest retailer in the world. Carrefour operates nearly 12,000 stores and e-commerce sites in more than 30 countries. The Complainant owns numerous CARREFOUR trademark registrations, and in particular: - French trademark CARREFOUR No. 1 487 274, dated September 2, 1988, duly renewed, that covers services in classes 35, 36, 37, 38, 39, 40, 41, 42; - European Union (“EU”) trademark CARREFOUR No. 008 779 498, dated July 13, 2010 that covers services in class 35; and - EU trademark CARREFOUR No. 005 178 371, dated August 30, 2007, duly renewed and covering goods and services in classes 9, 35 and 36. The Complainant also owns the domain names <carrefour.com> registered on October 25, 1995 and <carrefour.fr> registered on June 23, 2005. The disputed domain name is <carrefourgourmet.com> and was registered on March 23, 2017 by the Respondent. The disputed domain name resolves to a Godaddy parking page displaying commercial links including those of the Complainant and its competitors. The Complainant sent a cease-and-desist letter to the Respondent. On June 22, 2017, the Respondent replied to the Complainant requesting the latter to communicate by email. No response was obtained from the Respondent after that. The Complainant therefore filed the present Complaint with the Center. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or at least confusingly similar to its earlier trademarks, trade name and domain names formed with the word “carrefour”; that the Respondent does not have any rights or legitimate interests therein; finally, that the Respondent registered and uses the disputed domain name in bad faith for it could not ignore the Complainant s’ rights. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements: (i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests in respect of the domain name; and (iii) The domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant owns numerous trademark and domain name registrations worldwide for the trademark CARREFOUR, the reputation of which has already been acknowledged in previous UDRP panels’ decisions (Annex 7 to the Complaint). The trademark CARREFOUR is entirely reproduced within the disputed domain name <carrefourgourmet.com>, and it is associated with the generic word “gourmet”, which happens to be used by the Complainant to identify its network of “Gourmet” supermarkets operated in Europe and France (Annex 3 to the Complaint). The disputed domain name, even if not identical to the Complainant’s trademark, clearly appears confusingly similar thereto. The addition of the descriptive name “gourmet” to “carrefour” does not deprive the latter of its distinctiveness and individuality, but furthermore enhances the risk of association in the public’s mind between the Complainant and the disputed domain name, especially when the Complainant uses the term “gourmet” to qualify a selection of excellence in all the food sectors in a convenience of neighbourhood supermarket. Besides, the generic Top-Level Domain (“gTLD”) “.com” should typically be ignored when assessing confusing similarity as established by prior UDRP decisions (Annex 10 to the Complaint). The Panel concludes that the disputed domain name is confusingly similar to the Complainant’s mark and finds that the requirements of paragraph 4(a)(i) of the Policy are satisfied. B. Rights or Legitimate Interests The Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that the Respondent is not affiliated with it in any way and that it never authorized the Respondent to use its trademark as part of the disputed domain name. The Panel further finds that the Respondent is not making a bona fide offering of goods and services as the disputed domain name resolves to a parking page displaying commercial links including those of the Complainant and its competitors, which are likely to generate revenues. Such use in connection with a domain name, which is confusingly similar to the Complainant’s trademark, cannot provide the Respondent with any rights or legitimate interests in the domain name. The Respondent has not denied any of the Complainant’s assertions and has not brought any element showing that it has a right or legitimate interest in the disputed domain name. Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith 1) Registration in bad faith From the case record, it appears that the Respondent at the time of registration of the disputed domain name had put a residence in France, where the Complainant’s trademark CARREFOUR benefits from an indisputable reputation and notoriousness. The Panel cannot believe that the Respondent could not be unaware of the Complainant’s rights in the trademark CARREFOUR and of the Complainant’s exploitation of the trade name Carrefour Gourmet in France, when it sought to register the disputed domain name. The Panel is convinced therefore that the Respondent had the Complainant’s trademark in mind when it registered the domain name, and thus acted in bad faith. 2) Use in bad faith Even after receiving a cease-and-desist letter from the Complainant, notifying its earlier proprietary rights in the trademark CARREFOUR, the Respondent did not grant back the disputed domain name to its legitimate owner. The Panel regards this unjustified retention of the disputed domain name as a passive use in bad faith. Furthermore, the disputed domain name resolves to a parking page displaying commercial links including those of the Complainant and its competitors. The use of the disputed domain name in connection with the parking website establishes on the balance of probabilities that the Respondent has sought to attract, for commercial gain, Internet users to that website by creating a likelihood of confusion with the Complainant’s trademark CARREFOUR. Such a use of a well-known trademark to attract Internet users to a website for commercial gains constitutes an exploitation in bad faith. Finally, some document submitted by the Complainant (Annex 1 to the Complaint) reveals that an email server has also been configured on the disputed domain name, thus inducing a likelihood that the Complainant might have contemplated to use the domain name for phishing purposes, i.e. : personal and bank detail information. Consequently, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy are satisfied. 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 <carrefourgourmet.com> be transferred to the Complainant. William Lobelson Sole Panelist Date: January 22, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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