Complainant is Groupe Auchan of Croix, France, represented by Dreyfus & associés, France.
Respondent is Pengjie Jiang of Yantai, China.
The disputed domain name <voyages-auchan.info> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 22, 2014. On September 22, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 22, 2014, 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 26, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 16, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 17, 2014.
The Center appointed Lorenz Ehrler as the sole panelist in this matter on October 31, 2014. 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.
Complainant is the parent company of a large group in the food retail industry that operates in many countries in Europe and in Asia, in particular in China, where it currently operates 60 hypermarkets, others being planned. Complainant also offers travel agency services and organizes travels to destinations around the globe. These services are promoted via a dedicated website at “www.voyages-auchan.com”.
Complainant owns several trademarks AUCHAN (word or word and device), which were registered between 1994 and 2007, in numerous countries, in particular two international trademarks AUCHAN
(IR 952847 and IR 625533). It also holds the domain names <auchan.com>, <auchan.org>, <auchan.com.cn> (“.cn” being the Chinese country code Top-Level Domain (“ccTLD”)) and <voyages-auchan.com>, which were registered between 1996 and 2001.
According to the WhoIs excerpt filed by Complainant as Exhibit 1 to the Complaint, the disputed domain name <voyages-auchan.info> was registered by Respondent on May 8, 2014. It redirects the visitors to Complainant’s afore-mentioned travel website using a framing or similar technique.
Complainant contends that the disputed domain name is confusingly similar to its AUCHAN trademarks. It stresses the fact that the disputed domain name entirely comprises the aforementioned distinctive sign.
Furthermore, Complainant states that Respondent is not affiliated or related to it in any way, and that it did not authorize Respondent to use the trademark and trade name in question. Complainant also states that Respondent does not have any prior rights or legitimate interest in the disputed domain name and he does not make any legitimate use of the domain name.
Lastly, Complainant contends that Respondent registered and uses the disputed domain name in bad faith.
Respondent did not reply to Complainant’s contentions.
According to paragraph 4(a) of the Policy, Complainant must prove that:
A. The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
B. Respondent has no rights or legitimate interests in respect of the disputed domain name; and
C. The disputed domain name has been registered and is being used in bad faith.
Complainant holds several word and combined marks for AUCHAN. These trademarks are registered for various goods and services, in various classes, in many countries of the world. The trademarks put forward by Complainant are sufficient to ground the Complaint, at least under the first UDRP element, i.e. the issue of identity or confusing similarity.
The existence of a confusing similarity within the meaning of paragraph 4(a) of the Policy is not in doubt in the present case, given that the main element in the disputed domain name, i.e. “auchan”, is identical with Complainant’s very distinctive trademark AUCHAN. Indeed, it is obvious that there is a high risk that Internet users, when confronted with the disputed domain name, would believe the domain name and/or the attached website belongs to or is associated with Complainant. The incorporation of a trademark in its entirety is typically sufficient to establish that a domain name is identical or confusingly similar to a trademark (RapidShare AG, Christian Schmid v. InvisibleRegistration.com, Domain Admin, WIPO Case No. D2010-1059). The other element of the disputed domain name, i.e. the element “voyages”, is not sufficient to avoid confusing similarity. Indeed, the addition of merely generic wording to a trademark in a domain name is insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP (Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110, Swarovski Aktiengesellschaft v. new-swarovskicrystal-shop.net, WIPO Case No. D2013-1043).
As far as the generic Top-Level Domain (“gTLD”) “.info” is concerned, this element has a technical function and therefore does not typically need to be taken into account when assessing the issue of identity or confusing similarity.
The Panel therefore finds that paragraph 4(a)(i) of the Policy is satisfied.
Complainant contends that Respondent does not have any rights or legitimate interests in the disputed domain name. Complainant has shown that it owns AUCHAN trademarks, and it has explicitly contested having granted Respondent any right to use its trademarks.
In particular, Complainant contends (i) that Respondent has not been commonly known by the domain name before this dispute and (ii) that he has not used, or demonstrably prepared to use, the disputed domain name in connection with a bona fide offering of goods or services. To the contrary, Complainant has shown that the domain name redirects to Complainant’s dedicated website “www.voyages-auchan.com”, which – in the absence of any authorisation by Complainant – cannot be possibly viewed as a bona fide use. Indeed, using Complainant’s trademark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of paragraph 4(c)(i) and (iii) of the Policy.
Therefore, Complainant has made a prima facie showing that Respondent has no rights or legitimate interests in the disputed domain name. In line with previous UDRP panel decisions, this means that the burden of production shifts to Respondent (e.g. Belupo d.d. v. WACHEM d.o.o, WIPO Case No. D2004-0110; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
Respondent having failed to respond to the Complaint, this Panel concludes that Respondent does not have any rights or legitimate interests with respect to the disputed domain name.
Paragraph 4(a)(iii) of the Policy provides that Complainant must, in addition to the matters set out above, demonstrate that the disputed domain name has been registered and is being used in bad faith.
Complainant submits that Respondent registered and is using the disputed domain name in bad faith. The undisputed prima facie evidence establishes that Respondent is not affiliated with Complainant, and has no license or other authorization to use Complainant’s trademark or name.
Respondent registered the disputed domain name well after Complainant’s mark was in use. Irrespective of whether Complainant’s trademark AUCHAN is well known, as Complainant contends, the Panel finds that Respondent must have known about Complainant’s trademark and business when registering the disputed domain name. It is highly improbable to this Panel that Respondent would have registered the disputed domain name <voyages-auchan.info>, had he been unaware of Complainant’s trademark and of its travel website.
These facts and Respondent’s redirecting to Complainant’s official website, which in this Panel’s view cannot possibly pursue any legitimate purpose in the absence of Complainant’s authorisation, strongly indicate opportunistic bad faith. Therefore, registration and use in bad faith can be inferred.
Respondent has not submitted any evidence to rebut Complainant’s claims and assertions. In the absence of such evidence, and based on the evidence submitted by Complainant and having regard to all the relevant circumstances, the Panel accepts Complainant’s contentions that the disputed domain name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
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 <voyages-auchan.info> be transferred to Complainant.
Lorenz Ehrler
Sole Panelist
Date: November 13, 2014