WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Groupe Auchan v. Huang Wanzhen
Case No. D2014-1770
1. The Parties
The Complainant is Groupe Auchan of Croix, France represented by Dreyfus & associés, France.
The Respondent is Huang Wanzhen of Bolanjie, Nanqu, Hong Kong, China.
2. The Domain Name and Registrar
The disputed domain name <auchanwines.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 October 9, 2014. On October 10, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 10, 2014, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 16, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 5, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 6, 2014.
The Center appointed Ada L. Redondo Aguilera as the sole panelist in this matter on November 13, 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.
4. Factual Background
The Panel finds the following general factual matters established for the purposes of this decision:
The Complainant is a group in the food retail industry which was created by Gerard Mulliez and started its operations and commercial activity in 1961 in France and now operates in 16 countries in Europe as well as Asia. Its core businesses are hypermarkets, supermarkets, real estate, banking, and e-commerce. It has a workforce of 302,500 employees performing more than 150 different jobs, and generated more than Euro 60 billion in revenue, excluding taxes for the chains.
The Complainant included evidence in its Complaint that proves in this case that it has a presence in China under two hypermarket banners: Auchan and RT Mart (Ruentex Group). There are 60 Auchan hypermarkets and 267 RT Mart hypermarkets in China, counting up to 115,000 employees.
According to the Complainant, the Chinese hypermarkets, which are price-leaders in their catchment areas, offer a wide selection: “Pouce” budget products, seasonal products (in particular for textiles and “back to school” items), Auchan’s own-brand products, and fresh products from sustainable agriculture.
The Complainant established that as September is traditionally the month of the "Foire aux vin" (Wine Fairs) in supermarkets across France and Belgium, many online wine sellers and regular wine merchants (including the Complainant) organise their own two-week wine fair. The Complainant also organizes a wine fair in China from late September to early October.
The Complainant also conducts its business online and holds and uses numerous domain names incorporating the term “auchan” in this regard, including, for example, <groupe-auchan.com>, <auchan.com.cn>, and <auchan.fr>.
The Complainant has registered the AUCHAN trademark across the world, including in Hong Kong, as follows: n° 301823445 in classes 1 to 12, 14 to 15, 17 to 37, and 39 to 44, dated January 28, 2011, and n° 301614564 in classes 16, 35, 36, and 38 dated May 14, 2010, before the disputed domain name was created on September 1, 2014.
The Complainant’s AUCHAN trademark has been found to be well-known by previous UDRP panels in the following cases:
- Groupe Auchan v.beijingyidutiandikejifazhanyouxiangongs,WIPO Case No. D2009-1746;
- Groupe Auchan v. Bai Huiqin, WIPO Case No. D2009-0840;
- Groupe Auchan v. Arab4Des Co, Karim Mohamed,
WIPO Case No. D2012-0978; and
- Groupe Auchan v. Gan Yu,
WIPO Case No. D2013-0188.
The Respondent appears to be an individual in Hong Kong, according to the WhoIs presented by the Complainant. The Respondent has not responded to the Complainant’s requests to reveal the identity of the registrant, nor it responded to the Complainant’s demands that the use of the disputed domain name cease and that it be transferred to the Complainant
According to the Complainant’s evidence the website at the disputed domain name displays pornographic images.
The Respondent did not reply to the Complainant’s contentions.
5. Parties’ Contentions
A. The Complainant
The Complainant argues that:
1. The disputed domain name incorporates its trademark in its entirety, which may be sufficient to establish that the disputed domain name is identical or confusingly similar to the Complainant’s registered mark. The Complainant also argues that its trademark is prestigious and known worldwide, as held by prior UDRP panels in the following cases:
WIPO Case No. D2014-1156, Groupe Auchan v. C/o whoisproxy.com Ltd. / Domain Admin, Groupe AUCHAN v. beijingyidutiandikejifazhanyouxiangongsi, WIPO Case No. D2009-1746; Groupe Auchan v. Bai Huiqin, WIPO Case No. D2009-0840; and Auchan v. Web4comm Srl Romania, WIPO Case No. DRO2005-0001.
2. The disputed domain name comprises entirely the Complainant’s trademark and company name “auchan”, adding the generic and descriptive term “wine”, which the Complainant argues leads Internet users to believe that the disputed domain name is linked to a website related to the Wine Fairs organized by the Complainant.
3. The addition of a generic term to the Complainant’s well-known trademark does not prevent the risk of confusion between its trademark and the disputed domain name, as held in Compagnie Générale des Etablissements Michelin and Michelin Recherche et Technique S.A. v. Eijiobara Obara,
WIPO Case No. D2012-0047.
4. The presence of a generic Top-Level Domain (gTLD) such as “.com” is irrelevant to considerations of the similarity of a domain name to a trademark, as it is well-established that the gTLD is insufficient to avoid a finding of confusing similarity, as held in L’Oréal v Tina Smith, WIPO Case No. D2013-0820; Titoni AG v Runxin Wang, WIPO Case No. D2008-0082;and Alstom v. Itete Peru S.A., WIPO Case No. D2009-0877.
5. The Respondent is not in any way affiliated with the Complainant, nor has the Complainant authorized or licensed the Respondent to use its trademark, or to seek registration of any domain name incorporating said trademark.
6. The Respondent has no prior rights or legitimate interest in the disputed domain name. The registration of the AUCHAN trademark preceded the registration of the disputed domain name by years. The disputed domain name is so similar to the Complainant’s trademark that the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain name.
7. The Respondent is neither commonly known by the name “Auchan”, nor in any way affiliated with Complainant, nor authorized or licensed to use the AUCHAN trademark, or to seek registration of any domain name incorporating said mark. The Complainant cites the following cases: Groupe Auchan v. Gan Yu, WIPO Case No. D2013-0188 and LEGO Juris A/S v. Domain Park Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2010-0138.
8. The Respondent did not demonstrate use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Indeed, the disputed domain name previously resolved to a parking page displaying commercial links (pay-per-clicks) which were likely to generate revenues. In so doing, the Respondent is taking undue advantage of the Complainant’s trademark to generate profits. The use of a well-known trademark to attract Internet users to a website for commercial gains which inappropriately takes advantage of such mark constitutes bad faith under the Policy, as held in F Hoffmann-La Roche AG v. Anna Valdieri, WIPO Case No. D2007-0956; L’Oréal SA v. LV Kefeng, WIPO Case No. D2009-1231; and Alstom v. FM Laughna, WIPO Case No. D2007-1736.
9. The Respondent changed the website of the disputed domain name after receipt of the Complainant’s cease-and- desist letter. The Respondent is presently using the disputed domain name to offer pornographic content and to derive pay-per-click revenue. This behaviour constitutes “porno-squatting” which cannot be considered to be a legitimate use of the disputed domain name. UDRP panels have held that such porno-squatting constitutes a paradigm case of bad faith: AXA SA v. Ruben Weiner,
WIPO Case No. D2014-0458; Prada S.A. v. Ms. Loredana Salvatori,
WIPO Case No. D2007-0064; and Prada S.A. v. Redemption Ltd, WIPO Case No. D2009-1183.
10. The Respondent did not reply to the Complainant’s cease-and-desist letters and or subsequent reminders. Because the Respondent did not avail itself of its right to respond to the Complainant, it can be assumed that the Respondent has no rights or legitimate interests in the disputed domain name, as held in previous UDRP cases: Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim,
WIPO Case No. D2003-0269; and AREVA v. St. James Robyn Limoges,WIPO Case No. D2010-1017.
11. The Respondent was aware of the Complainant when it registered the disputed domain name because AUCHAN is a well-known trademark throughout the world, including in Hong Kong. The Complainant cites the following UDRP cases: LEGO Juris A/S v. store24hour,
WIPO Case No. D2013-009; Lancôme Parfums et Beauté & Cie, L’Oréal v. 10 Selling, WIPO Case No. D2008-0226; and Caixa D´Estalvis I Pensions de Barcelona (“La Caixa”) v. Eric Adam, WIPO Case No. D2006-0464. Bad faith registration can be inferred based on the reputation of the AUCHAN trademark.
B. The Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Panel now proceeds to consider this matter on the merits in light of the Complaint, the absence of a formal Response, the Policy, the Rules, the Supplemental Rules, and other applicable legal authority, pursuant to paragraph 15(a) of the Rules.
Paragraph 4(a) of the Policy provides that the Complainant must prove, with respect to the disputed domain name, each of the following elements:
(i) The disputed domain name is confusingly identical or similar to a trademark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered by the Respondent and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s well-known trademark, as it reproduces in an integrated manner the Complainant’s trademark in combination with a dictionary term that is a product sold by the Complainant through its September Wine Fairs. The Respondent did not answer or rebut any of the Complainant´s arguments, therefore, the Panel accepts the Complainant’s contentions 1, 2, 3 and 4 listed above under section 5, and adopts the reasoning in the cited URDP panel decisions.
B. Rights or Legitimate Interests
In circumstances where, as in the present case, the Respondent did not prove any legitimate interest or answer any of the Complainant’s arguments and the Complainant has not given the Respondent any license to use its trademark, Panels have found that the Respondent has no rights or legitimate interests in the disputed domain name. For the foregoing reason this Panel accepts the Complainant’s contentions numbered 5, 6, 7, 8, 9, 10, and 11 listed above under section 5 (which, as mentioned before, were not refuted by the Respondent) and adopts the analysis in the previously cited UDRP panel decisions.
C. Registered and Used in Bad Faith
The Panel accepts the evidence presented by the Complainant in this case and establishes that the Respondent could not and did not register the disputed domain name in ignorance of the Complainant’s AUCHAN trademark andthus infers that the disputed domain name was registered in bad faith. Also, the Panel finds that the subsequent use of the disputed domain name has also been in bad faith, as the website was first used for commercial purposes and after the Complainant’s attempt to solve the controversy in an amicable matter, the Respondent turned the website to a pornographic site displaying pornographic material, which is used in bad faith. The Panel finds that the disputed domain name was registered and is being used in bad faith. In doing so the Panel accepts the Complainant’s contention numbered 9 above, which was not disputed by the Respondent, and also based on the analysis in the cited UDRP decisions.
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 <auchanwines.com> be transferred to the Complainant.
Ada Redondo
Sole Panelist
Date: November 25, 2014
