L’Association des Centres Distributeurs E. Leclerc v. Patrick Becker
Case No. D2006-1375
1. The Parties
The Complainant is L’Association des Centres Distributeurs E. Leclerc, Ivry-sur-Seine Cedex, France, represented by Inlex Conseil, France.
The Respondent is Patrick Becker, Nancy, France.
2. The Domain Name and Registrar
The disputed domain name <leclercvacances.com> is registered with Go
Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 25, 2006. On October 30, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On October 30, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 the Respondent of the Complaint, and the proceedings commenced on November 3, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 23, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 24, 2006.
The Center appointed William Lobelson as the Sole
Panelist in this matter on December 1, 2006. 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 is major French supermarket chain trading as “Leclerc”. It owns numerous trademark registrations formed with the name LECLERC and also offers travel agency services under brands like LECLERC-VOYAGES.
The notoriousness of LECLERC in France is indisputable.
The Respondent, who also happens to be French, has registered the domain name <leclercvacances.com> and simply parked the same on the portal website of “www.sedoparking.com”, on a web page where links to Complainant’s competitors are listed and where it is offered for sale.
The cease-and-desist letter sent via airmail to the Respondent by the Complainant was returned because the Respondent is not domiciled at the address declared in the Whois of the disputed domain name.
The Complainant therefore filed the present Complaint with the Center.
Based on the communication record between the Center and the Respondent, the Respondent’s declared e-mail addresses do not appear to be operational either.
The Respondent has not filed any response to the Complaint
and is therefore found in default.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name violates its earlier trademarks rights, that the Respondent has no legitimate rights or interests in the disputed domain name and that the same was filed and is used in bad faith since the Respondent, being French, could not ignore the notoriousness and rights vested in the trademark LECLERC and deliberately parked the domain name on web page for speculative purposes, with the intent to distract the Complainant’s goodwill.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is <leclercvacances.com>.
The Complainant is the proprietor of numerous registered trademarks and domain names identical to or formed with the word “Leclerc”.
The Panel observes that the Complainant owns, among others, trademark registrations for E.LECLERC VOYAGES and E.LECLERC EVASION, as well a range of domain names under the top level domains “.com” or “.fr” formed with the brand LECLERC VOYAGE(S).
The Panel finds that the addition of the descriptive word “vacances” to the trademark LECLERC does not reduce the risk of confusion in the public’s mind between the disputed domain name and the earlier Complainant’s mark; on the contrary, the public can legitimately believe that the domain name is a derivation of the Complainant’s trademark, intended to designate a travel agency service department.
Moreover, the Panel finds that in view of the very high conceptual resemblance between the words “voyages” and “vacances”, the disputed domain name must be found confusingly similar with the earlier trademarks and domain names “Leclerc vacances” owned by the Complainant.
It is the Panel’s opinion therefore that the disputed domain name <leclercvacances.com> is confusingly similar to the trademarks and domain names LECLERC and LECLERC VOYAGES in which the Complainant holds earlier proprietary rights.
The Panel concludes that the requirements of Paragraph 4(a)(i) of the Policy are satisfied.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the following circumstances can demonstrate that the Respondent has rights to or legitimate interests in the disputed domain name:
(i) before any notice was given to the Respondent of the dispute, the Respondent used, or demonstrably made preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights; or
(iii) the Respondent is making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
It is a consensus view of WIPO UDRP panelists (see WIPO
Overview of WIPO Panel Views on Selected UDRP Questions (“http://arbiter.wipo.int/domains/search/overview/index.html”)
that the overall burden of proof under paragraph 4(c) of the Policy rests with
the complainant, which is required to establish that the respondent prima
facie lacks any rights to, or legitimate interests in, the disputed domain
name, and that if the respondent fails to answer such case, the complainant
is deemed to have satisfied its burden of proof (Croatia Airlines d.d. v.
Modern Empire Internet Ltd.,WIPO
Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO
Case No. D2004-0110).
The Complainant claims that the Respondent has no rights to or legitimate interests in the contested domain name because:
- it has not been authorized by the Complainant to register or use the disputed domain name;
- it does not trade nor is known in the course of trade under the name “Leclerc” or “Leclercvacances” and does not make any legitimate non commercial use thereof;
- it could not ignore the rights vested in the notorious trademark LECLERC;
The Respondent, being in default, has not presented any justification for holding the disputed domain name.
The Panel observes that the disputed domain name resolves to a website which obviously does not seem to indicate that the Respondent would have any kind of trademark or trade name rights in the name “leclercvacances” and which does not contain any reference to a commercial use of the name “leclercvacances” in the course of trade nor indicate that Respondent has been commonly known by the disputed domain name.
The Panel therefore considers that there is no element in the present case which may be interpreted as justifying a finding that Respondent has any rights or legitimate interests in the disputed domain name.
The Panel is therefore satisfied that the Respondent has no rights or legitimate interests in the disputed domain name, in accordance with the provisions of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, the following circumstances, if
found by the Panel, shall be evidence that the disputed domain name has been
registered and used in bad faith if:
(i) circumstances indicating that the Respondent has registered and has acquired the 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 the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the 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 domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its website or location.
The documents provided by the Complainant in support of its Complaint clearly establish that the trademark LECLERC is widely known in France, in connection with retail services.
The Complainant has demonstrated that it is also involved in the business of travel agent services under the trademark, trade name and domain names LECLERC VOYAGES.
The registration of the disputed domain name <leclercvacances.com> by the Respondent, who happens to be French and who, as explained above, does not appear to have any rights or legitimate interests therein appears highly suspicious to the Panel.
In view of the notoriety of the trademark LECLERC in France, and considering
that the Complainant is also known as being involved in the business of travel
services under the trademark LECLERC VOYAGES, it is the Panel’s opinion
that the Respondent could not be unaware of the Complainant’s
use of the said names in the French market, and thus had the Complainant’s
earlier marks in mind when it registered the disputed domain name. (See,
e.g., Red Bull GmbH v. Harold Gutch, WIPO
Case No. D2000-0766, and eBay Inc. v. Sunho
Hong, WIPO Case No. D2000-1633).
Also of relevance are the facts that the street address and e--mail address declared by the Respondent in the domain name Registration Contract appear to be falsified, as if the Respondent had deliberately endeavoured to conceal its genuine identity and thus remain unreachable with a view to evading its responsibility, and that the domain name is offered for sale, suggesting that its registration was done for a speculative purpose. Such a behaviour indicates that the Respondent registered the domain name in bad faith.
Furthermore, as emphasized by the Complainant, the Respondent should have undertaken a clearance search in order to check whether the domain name was free of use and would not violate third parties’ interests. He would thus have detected the earlier rights of the Complainant.
Having neglected to do
so, the Respondent has demonstrated evident carelessness. See earlier decision
in Australian Stock Exchange Limited and ASX Operations Pty Limited v. Community
Internet (Australia) Pty Ltd, WIPO
Case No. D2000-1384.
The Panel is thus satisfied that the disputed domain name was registered in bad faith in accordance with provisions of paragraph 4(a)(iii) of the Policy.
Turning now to bad faith use, the disputed domain name is active and points towards a so--called “parking” website containing various sponsored links, most of which direct to some of the Complainant’s competitors. This well known practice of domain name parking enables the domain name holder not only to speculate by the possible sale of the same, but also to collect a financial remuneration proportional to the number of connections to the parking website and activated sponsored links operated through the parked domain name.
In the present case, the Respondent does not make any legitimate use of the disputed domain name; it has simply parked the same with an apparent view to selling it and meanwhile, benefits from the notoriousness and goodwill vested in the Complainant’s marks by attracting the public to a website with links to the Complainant’s competitors. Hence, not only does the Respondent apparently get financial gains out of the Complainant’s marks, but it also divert the Complainant’s potential customers to competitors.
As determined by prior UDRP decisions, parking a domain name in such a manner
for financial gain is common among cyber--squatting cases and demonstrates bad
faith on the part of the registrant. (See, e.g., Deloitte Touche Tohmatsu
v. Henry Chan, WIPO Case No. D2003-0584;
Maplin Electronics Limited v. Lee Jeongsoon,WIPO
Case No. D2006-0011).
The Panel finds therefore that the Respondent has
deliberately adopted and used the disputed domain in order to take advantage
of the fame and goodwill of the Complainant’s trademark, with a view to
attracting the Complainant’s actual and potential customers to sponsored
links and thus make business and financial gains to the detriment of the Complainant
per paragraph 4(b)(iv) of the Policy. (See, e.g., Nora Baumberger v. SAND
WebNames – For Sale, WIPO Case No. D2001-0502,
and Microsoft Corporation v. MindKind, WIPO
Case No. D2001-0193).
The Panel is therefore satisfied that the disputed
domain name is also used in bad faith, in accordance with paragraph 4(a)(iii)
of the Policy.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <leclercvacances.com> be transferred to the Complainant.
William Lobelson
Sole Panelist
Dated: December 15, 2006
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