The Complainant is GROUPE AUCHAN, Croix, France, represented by Cabinet Dreyfus & Associés, France.
The Respondent is John Hilinski, Pacific Palisades, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <auchanenglos.com>
is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 23, 2007. On February 23, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On February 23, 2007, 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 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 March 2, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 22, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 27, 2007.
The Center appointed Linda Chang as the sole panelist
in this matter on April 2, 2007. 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 a retail group created in 1961, based in France but operating in 12 countries and regions. In 1969, the Complainant opened in the city of Englos the first French shopping center, which is also the biggest in France.
The Complainant owns trademark registrations of AUCHAN in the European Union and in the United States of America. In addition, it also owns International Trademark Registrations of the name AUCHAN under the Madrid system.
The Respondent registered the domain name at issue
in May 2006 and offered it for sale via the page hosted by Sedo GmbH. The Complainant
approached the Respondent for an amicable transfer of the domain name. The Respondent
first quoted US$960 for a transfer and later seemed to agree to a 30 Euro fee
but the transfer was eventually unsuccessful. The Complainant thus lodged the
UDRD proceeding.
5. Parties’ Contentions
A. Complainant
Identical or Confusingly Similar
The Complainant contends that it owns the following trademark registrations:
-- Community trademark AUCHAN, n°000283101, in classes 1 to 42;
- Community trademark AUCHAN, n° 004510707, in classes 35, 38;
- International trademark AUCHAN, n° 284616 in classes 3, 9, 11, 25, 29, 32;
- International trademark AUCHAN n° 782558 in classes 9, 36, 38, 42;
- International trademark AUCHAN n° 840895 in classes 1 to 45;
- US Trademark AUCHAN, n° 1633554, registered on January 29, 1991 in class 42;
- US Trademark AUCHAN, No. 2868275, registered on August 3, 2004 in classes 3, 9, 11, 25, 29, 32, 35, 36, 37, 38 and 42;
- US Trademark A AUCHAN, No. 2873113, registered on August 17, 2004 in classes 3, 9, 11, 25, 29, 32, 35, 36, 37, 38 and 42.
The Complainant contends that the domain name <auchanenglos.com> reproduces entirely its trademark AUCHAN with the mere addition of the geographical term “Englos” which designates precisely a French city in north of France, where the Complainant has its most important AUCHAN hypermarket.
The Complainant further contends that the mere adjunction of the gTLD indicator of “.com”, does not add any distinguishing features to the domain name and therefore does not change the likelihood of confusion. The Complainant contends that this view has been held numerous times in previous WIPO cases.
Rights or Legitimate Interests
The Complainant contends that the Respondent is not affiliated to the Complainant in any way, nor authorized by the Complainant to use or register its trademark and service marks as a domain name.
The Complainant also contends that the Respondent does not have any prior rights or legitimate interests in the domain name nor has it used the term “Auchan” in any way before or after the Complainant started its business.
The Complainant further contends that the Respondent is not known under the name “Auchan” as a business name nor as its family name.
Registered and Used in Bad Faith
The Complainant contends that the Respondent offered the disputed domain name for sale via the page hosted by Sedo GmbH and that it has been held in numerous previous WIPO cases that the offering of a domain name for sale is “one avenue for establishing bad faith registration and use pursuant to the Policy”.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove all of the following in order for its contentions to be supported in the proceeding:
(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 started its retailing business about half a century ago in France and in 1969 opened the first French shopping center, which is also the biggest in France, in the city of Englos, France. The Complainant is the trademark owner of AUCHAN in multiple jurisdictions such as Europe and the United States of America.
The domain name at issue <auchanenglos.com> is composed of “auchan” “englos” and “.com”. “auchan”, as stated above, is identical with the Complainant’s registered trademark, “englos” is the name of a French city, where the Complainant operates its first and biggest shopping center since 1969. The last part of the domain name “.com” is a generic indicator of a gTLD. Neither the geographical term nor the generic term “com” is sufficient to differentiate the domain name from the Complainant’s trademark AUCHAN.
The Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent is not known by the subject domain name nor is authorized to use the Complainant’s mark. Although the Respondent default does not mean it will automatically lose the case, the information provided to the Panel does not lead to any of the situations as provided under paragraph 4(c) of the Policy that would indicate the Respondent’s possession of legitimate rights or interests in the domain name at issue.
The Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b)(i) provides bad faith evidence in the registration and use of the domain name in circumstances that the domain name holder has registered 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 that complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name.
From the documents on record, the Respondent, in one of its email communications with the Complainant, quoted US$960 for transfer of the domain name at issue. The Respondent failed to provide any information to show its out-of-pocket costs directly related to the domain name but according to the fee information published on the website of the domain name registrar, Go Daddy Software, with whom the domain name at issue is registered, US$18.99 is the fee for registration of one “.com” domain name. Therefore the quoted fee US$960 by the Respondent is in considerable excess of the Respondent’s out-of-pocket costs directly related to the domain name at issue.
The Panel is satisfied that the Complainant has met
the requirements of 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 <auchanenglos.com> be transferred to the Complainant.
Linda Chang
Sole Panelist
Dated: April 16, 2007
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