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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Carrefour S.A v. Multigestiones Puertonorte S.L.

Case No. D2000-0837

 

1. The Parties

The Complainant is Carrefour S.A., having a place of business at 6 avenue Raymond Poincarй, 75016, Paris, France.

The Respondent is Multigestiones Puertonorte S.L. having an address at Ctra. Santa Ursula, 191 4-D, Santa Ursula, Tenerife, 38, Es Canarias.

 

2. The Domain Name(s) and Registrar(s)

The domain names which are the subject of these administrative proceedings are "carrefour-group.com", "carrefourgroup.com" and "newcarrefourgroup.com".

Register.com is the registrar of the domain name "carrefour-group.com", and the Name It Corporation is the registrar of the domain names "carrefourgroup.com" and "newcarrefourgroup.com".

 

3. Procedural History

On July 20, 2000 the Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") by e-mail and in hard copy on July 25, 2000.

On July 26, 2000 the Center sent a Request for Register Verification to Register.com and on July 28, 2000 Register.com responded, confirming that it is the registrar of the domain name "carrefour-group.com", that the Respondent is the current registrant of the said domain name "carrefour-group.com", that the Policy applies to the said registration and that the registration was at that time in active status. Registrar.com advised the Center that it is not the registrar of the domain names "carrefourgroup.com" and "newcarrefourgroup.com".

On August 1, the Center sent a Request for Register Verification to The Name It Corporation in respect of the domain names "carrefourgroup.com" and "newcarrefourgroup.com".

On August 18, 2000 there was an exchange of e-mail correspondence between the Center and the Complainant regarding the identification of the registrars of the domain names in issue in the proceedings and the Complainant amended the information relating to the registrars in the Complaint.

On August 21, 2000, following an exchange of e-mails, between the Center and The Name It Corporation, The Name It Corporation confirmed that it is the registrar of the domain names "carrefourgroup.com" and "newcarrefourgroup.com", that it had received the Complaint, that the Respondent is the current registrant of the said domain names "carrefourgroup.com" and "newcarrefourgroup.com", that the Policy applies to the said registration and that the said registrations had been put on hold pending the outcome of these Administrative Proceedings.

In accordance with Paragraph 4(a) of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and paragraph 5 of the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("the Supplemental Rules") the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules and the Supplemental Rules and that payment in the required amount had been made by the Complainant.

On August 21, 2000 the Center sent a Notification of Complaint and Commencement of Administrative Proceeding relating to the registrations of the said domain names "carrefour-group.com", "carrefourgroup.com" and "newcarrefourgroup.com" to the Respondent. Said Notification was sent to the Respondent by Post/Courier, by facsimile and by e-mail. A copy of said Notification was sent to the authorised representative of the Complainant by e-mail. Further copies of said Notification were sent to the Internet Corporation for Assigned Names and Numbers ("ICANN") and to each of the Registrars.

Said Notification of Complaint and Commencement of Administrative Proceeding inter alia advised the Respondent that the Administrative Proceedings had commenced on August 21, 2000 and that the Respondent was required to submit a Response to the Center on or before September 10, 2000.

No Response was received by the Center from the Respondent and on September 22, 2000, the Center sent a Notification of Respondent Default to the Respondent by e-mail. A copy of said Notification of Respondent Default was on the same date sent to the authorised representative of the Complainant by e-mail. Said Notification inter alia advised the Respondent that the Respondent was in default and that in accordance with the Rules, and the Supplemental Rules, the Center would proceed to appoint a single member Administrative Panel as designated by the Complainant, that the said Administrative Panel would be informed of the said default, and that the Center would continue to send all case-related communications to the Respondent.

On September 25, 2000 the Center invited James Bridgeman to act as Administrative Panel in these Administrative Proceedings, and, after having received a Statement of Acceptance and Declaration of Impartiality from him in accordance with paragraph 7 of the Rules, the Center proceeded to appoint said James Bridgeman as Administrative Panel on October 2, 2000. On the same day the case file was transmitted to the Administrative Panel.

In the view of the Administrative Panel, proper procedures were followed and this Administrative Panel was properly constituted.

 

4. Factual Background

The Complainant is a Sociйtй Anonyme, organised and existing under the laws of France and carries on the business of retail sales through its supermarket outlets in more than 20 countries. The group and its affiliate companies own approximately 682 hypermarkets and 2670 supermarkets throughout the world.

Over the years, the Complainant has carried on business under the "CARREFOUR" trademark and has trademark registrations for "CARREFOUR" in numerous jurisdictions including the following: French registered trademark "CARREFOUR" N° 1565338 filed since 1965 in classes 1 to 34; French registered trademark "CARREFOUR" N° 1487274 filed since 1968 registered in respect of services in classes 35 to 42; International registration "CARREFOUR" N° R-351 147 filed in 1968 in respect of goods in classes 1 to 34; International registration "CARREFOUR" N° R 354849 filed in 1969 in respect of services of classes 35 to 42.

As no Response has been filed, there is no information available to this Administrative Panel relating to the business or other activities of the Respondent save the information received from the Registrars and in the Complaint. According to the details filed with the Registrars, the Respondent has an address in Tenerife, Spain and it registered said domain names on January 31, 2000 and February 27, 2000.

 

5. Parties’ Contentions

A. Complainant

The Complainant submits that since its establishment in the early 1960’s its business has continued to grow and the Complainant has built up a substantial reputation and goodwill in France and abroad in the use of its name, trademarks and service marks, notably the "CARREFOUR." trademark. The Complainant has submitted two affidavits of notoriety in support of these claims.

The Complainant claims to be the leading hypermarket and supermarket retailer in France, Spain, Belgium, Portugal, Greece, Taiwan, Indonesia, Brazil and Argentina.

The Complainant has furnished evidence of its ownership and continued use of the said trademark and service mark "CARREFOUR" in numerous jurisdictions over a number of years. In support of these submissions the Complainant has furnished details of the above referenced trademark and service mark registrations in France and numerous jurisdictions across the world.

As regards the similarity of the said domain names to the Complainant’s trademarks and service marks, the Complainant submits that the word "CARREFOUR" is the main distinctive element in each of the said domain names. It is submitted that the distinctive word "CARREFOUR" is the element with the essential "commercial/communication impact" in each of these domain names. The Complainant further submits that the addition of the non-distinctive elements: "new" and "group" does not avoid the possibility of confusion at all.

As regards any rights or interest the Respondent may have in the said domain names, the Complainant points out that while it has a long standing reputation in the use of the "CARREFOUR" trademark and service mark, the Respondent’s domain name registrations are of very recent vintage as the Respondent did not register the said domain names until January 31, 2000 and February 27, 2000 respectively.

The Complainant submits that in registering these domain names, the Respondent would have been aware that the said domain names "carrefour-group.com", "carrefourgroup.com" and "newcarrefourgroup.com", refer directly to the Complainant. In support of this submission the Complainant points to the established reputation of the Complainant in numerous jurisdictions and submits that the Respondent would have been aware of the Complainants trademarks, goodwill and reputation when it registered the said domain names.

The Complainant submits that the said domain names have been registered and are being used in bad faith and are infringement and/or undue use of the Complainant’s "main distinctive sign". In this regard the Complainant points to the Respondent’s apparent connection with Spain, and points out that the Complainant has been engaged in intensive business activity in that jurisdiction for more than 20 years.

The Complainant submits that the Respondent’s choice of these three domain names, each of which has a reference to the Complainants business, demonstrates that the Respondent had knowledge of the Complainants reputation and the value of the goodwill in the trademark and service mark "CARREFOUR". In support of this allegation, the Complainant states that it merged last year with another very important French retailer and the Complainant submits that the registration of the domain name "newcarrefourgroup.com" is particularly significant as it refers to and reflects this very important change in the structure of the Complainant business organisation.

The Complainant submits that the Respondent has never intended to use the domain names. In this regard, the Complainant submits that the Respondent has offered to sell the said domain names to the Complainant and has threatened to sell the domain names to a third party in the event of a refusal by the Complainant to purchase the said domain names. The Complainant has submitted copies of correspondence between the representative of the Respondent and the representative of the Complainant in support of this contention.

The Complainant responded to this proposal via its trademark Attorney and demanded the transfer of the proposed domain names free of charge. The Complainant states that there was no response to this demand from either the Respondent or its attorney.

Furthermore, in support of this allegation, the Complainant has submitted a print out from a web site on which the Respondent has offered the said domain names for sale.

The Complainant submits that these circumstances taken together demonstrate that the Respondent registered or acquired the said domain names primarily for the purpose of selling, renting or transferring them for valuable consideration in excess of the domain names registrant’s out of pockets costs directly related to the domain name.

B. Respondent

The Respondent did not file any Response.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy places on the Complainant the onus of proving in respect of each of the domain names in dispute that:

(i) the said domain name in dispute 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 said domain name; and

(iii) the said domain name has been registered and is being used in bad faith.

This Administrative Panel is satisfied that the Complainant has rights in the said trademark and service mark "CARREFOUR". These rights exist both at common law and by virtue of the Complainant numerous trademark and service mark registrations for the said "CARREFOUR" mark.

This Administrative Panel has considered each of the said domain names in turn and concludes that each of these is confusingly similar to the Complainant’s said "CARREFOUR" trademark. In reaching this conclusion, this Administrative Panel accepts the Complainants submissions that the most significant element of each of the said domain names is the word "carrefour" and that the addition of the elements "new" and "group" are not sufficient to distinguish these domain names from the said trademark and service mark.

As to whether the Respondent has any rights or legitimate interest in the said domain names, the Respondent has not furnished any Response. This Administrative Panel is conscious that it is difficult for the Complainant to prove a negative, however given the evidence submitted by the Complainant which establishes that the Complainant has for many years a significant reputation in Spain, the jurisdiction in which the Respondent is established, it is sufficient to satisfy this Administrative Panel that the Respondent has no such rights or legitimate interest in the said domain names.

In addition to the above, the Complainant has established a prima facie case that the Respondent has offered to sell the said domain names to the Complainant for a sum in excess of the Respondent’s out of pocket costs directly related to the domain names and has indicated that if the said domain names were not purchased by the Complainant, the Respondent could sell them to a third party. Furthermore the Complainant has furnished evidence in the form of a print-out of a www site on which the Respondent has offered the said domain names for sale for sums in excess of the Respondent’s out of pocket costs directly related to the domain names.

In the absence of any explanation from the Respondent, this Administrative Panel is satisfied that the Complainant has established that the Respondent has registered and is using said domain names in bad faith.

 

7. Decision

With specific reference to paragraph 4(i) of the Policy and paragraph 15 of the Rules this Administrative Panel decides that the Respondent has registered the domain names "carrefour-group.com", "carrefourgroup.com" and "newcarrefourgroup.com" each of which are identical or confusingly similar to the trademark and service mark "CARREFOUR" in which the Complainant has rights, that the Respondent has no rights or legitimate interest in respect of said domain names or any of them and that the Respondent has registered and is using said domain names and each of them in bad faith.

Accordingly, this Administrative Panel decides that said domain names "carrefour-group.com", "carrefourgroup.com" and "newcarrefourgroup.com" should be transferred to the Complainant.

 


James Bridgeman
Sole Panelist

Dated: October 11, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0837.html

 

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