WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Carrefour S.A. v. Perfect Privacy, LLC / Milen Radumilo

Case No. D2018-2818

1. The Parties

The Complainant is Carrefour S.A. of Boulogne-Billancourt, France, represented by Dreyfus & associés, France.

The Respondent is Perfect Privacy, LLC of Jacksonville, United States of America (“United States”) / Milen Radumilo of Bucharest, Romania.

2. The Domain Name and Registrar

The disputed domain name <carrifour.com> (the “Disputed Domain Name”) is registered with SNAPNAMES 20, INC. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 11, 2018. On December 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 12, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 13, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 14, 2018.

The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 7, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2019.

The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on January 17, 2019. 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, Carrefour, is a multinational retailer established in France. The Complainant was founded in 1958 and has since grown to an international supermarket chain employing over 375,000 people in more than 12,300 stores in over 30 countries worldwide.

The Complainant is the holder of a multitude of trade- and service mark registrations across various jurisdictions throughout the world for and relating to the mark CARREFOUR, which it uses in connection with its retail and supermarket business. The Complainant’s trademark portfolio includes, inter alia, the following trade- and service mark registrations:

- CARREFOUR, word mark registered with the French National Intellectual Property Institute (“INPI”) under No. 1487274 on September 2, 1988 in classes 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45;

- CARREFOUR, word mark registered with the European Union Intellectual Property Office (“EUIPO”) under No. 005178371 on August 30, 2007 in classes 9, 35 and 38;

- CARREFOUR, word mark registered with the EUIPO under No. 008779498 on July 13, 2010 in class 35.

The Disputed Domain Name <carrifour.com> was registered by the Respondent on August 9, 2018 using a proxy service. The Disputed Domain Name currently does not resolve to an active website. Instead, it redirects to different websites connected to, amongst others, the domain names <alloutgiveaways.pw> and <phone-w1n.com>. When redirected, these websites display a message that the visitor has won a smartphone as a “Google customer reward” and prompt the visitor to provide his contact details and credit card information in order to claim the reward at the price of one Euro. Accordingly, the Disputed Domain Name appears to currently be used for fraudulent purposes, and specifically for phishing and/or identity theft. Before initiating the Complaint, the Disputed Domain Name used to resolve to a standard parking page displaying sponsored links related to various matters, including the Complainant and its retail business. The Disputed Domain Name also appears to have been offered for sale on a domain name market place for the price of 688 USD.

Before initiating UDRP proceedings, on August 13, 2018, the Complainant contacted the Email Service Provider whose services were used to configure an email server on the Disputed Domain Name requesting the deactivation of this email server. The Email Service Provider replied on August 14, 2018, notifying the Complainant that it does not host any content on the website connected to the Disputed Domain Name and that the dispute should be resolved by initiating a UDRP proceeding. On October 4, 2018, the Complainant contacted the Registrar, notifying it of the Complainant’s rights and requesting the blocking of the Disputed Domain Name. The Registrar did not reply to the Complainant’s communication despite three reminders. On November 12, 2018, the Complainant contacted the operator of the domain name market place where the Disputed Domain Name was listed for sale, notifying it of the Complainant’s rights and requesting the blocking of the Disputed Domain Name on the marketplace. On November 12, 2018, the domain name market place operator replied that it had blocked the Disputed Domain Name on its marketplace.

After the verification by the Registrar, the Complainant amended its Complaint and corresponding annexes and provided evidence showing that the Respondent has been involved in 42 previous UDRP proceedings, two of which were also brought by the Complainant for the domain names <carrefour-sa.com> and <supermercadocarrefour.com>. All 42 UDRP proceedings against the Respondent have led to the transfer or cancellation of the domain names in question.

5. Parties’ Contentions

A. Complainant

The Complainant considers the Disputed Domain Name to be confusingly similar to trademarks and service marks in which it claims to have rights. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. According to the Complainant, the Respondent has not used the Disputed Domain Name in connection with a legitimate use. Also, according to the Complainant, the Respondent has not been commonly known by the Disputed Domain Name and is in no way affiliated with the Complainant. Finally, the Complainant claims that the Disputed Domain Name was registered and is being used in bad faith. The Complainant contends that the Respondent knew, or at least should have known, of the existence of the Complainant’s trademark and that this constitutes a clear case of typosquatting. The Complainant further claims that the Respondent has used the Disputed Domain Name in order to intentionally attempt to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. The Complainant also contends that the Respondent has engaged in a pattern of trademark-abusive domain name registrations, including domain names corresponding to the Complainant’s CARREFOUR trademark.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer the Disputed Domain Name. As the UDRP proceedings are expedited and do not have any evidentiary discovery, the standard of proof is the balance of probabilities.

Thus, for the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy, that:

(i) The Disputed 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 Disputed Domain Name; and

(iii) The Disputed Domain Name has been registered and is being used in bad faith.

The Panel will therefore deal with each of these requirements.

A. Identical or Confusingly Similar

To prove this element, the Complainant must first establish that there is a trademark or service mark in which it has rights. The Complainant has clearly established that there is a trademark in which the Complainant has rights. The Complainant’s CARREFOUR mark has been registered and used in connection to its retail and supermarket products and services.

The Disputed Domain Name incorporates the Complainant’s CARREFOUR mark almost in its entirety, merely replacing the letter “e” with the “i”. The substitution of this single letter does not significantly affect the appearance or pronunciation of the Disputed Domain Name. This practice is commonly referred to as “typosquatting” and creates virtually identical and/or confusingly similar marks to the Complainant’s trademark (Mapfre S.A. y Fundación Mapfre v. Josep Sitjar; WIPO Case No. D2011-0692; Compagnie Gervais Danone v. Jose Gregorio Hernandez Quintero, WIPO Case No. D2009-1050).

Additionally, it is well established that the generic top-level suffix “.com” may be disregarded when considering whether the Disputed Domain Name is confusingly similar to the trademark in which the Complainant has rights.

Accordingly, the Panel finds the Disputed Domain Name to be confusingly similar to the Complainant’s CARREFOUR trademark and the Complainant has thus made out the first of the three elements of the Policy that it must establish.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.

As established by previous UDRP panels, it is sufficient for the Complainant to make a prima facie showing that the Respondent has no rights or legitimate interests in the Disputed Domain Name in order to place the burden of production on the Respondent (see section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).

The Panel notes that the Respondent has not apparently been commonly known by the Disputed Domain Name and that the Respondent does not seem to have acquired trademark or service mark rights. The Respondent’s use and registration of the Disputed Domain Name was not authorized by the Complainant. There are no indications that a connection between the Complainant and the Respondent existed.

Moreover, the Panel is of the opinion that the Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name.

UDRP panels have categorically held that the use of a domain name for illegal activity (e.g., phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on the Respondent (see section 2.13 of the WIPO Overview 3.0).

While the Disputed Domain Name used to resolve to a standard parking page before initiating the Complaint, it currently redirects to different websites displaying a message that the visitor has won a smartphone as a “Google customer reward” and prompting the visitor to provide his contact details and credit card information in order to claim the reward at the price of one Euro or for only the shipping costs.

A panel may conduct limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision. This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name (see section 4.8 of the WIPO Overview 3.0).

Factual research conducted by the Panel into the websites to which the Disputed Domain Name currently redirects clearly shows that the Respondent uses the Disputed Domain Name to deceive Internet users in providing their identity and contact details, as well as their credit card information for fraudulent purposes. Evidently, such use cannot be considered a legitimate noncommercial or fair use of the Disputed Domain Name.

Additionally, the evidence of the case shows that the Disputed Domain Name previously redirected to a standard parking page displaying sponsored links related to various matters, including the Complainant and its retail business. Since these sponsored (pay-per-click) links risk misleading Internet users and compete with or capitalize on the reputation and goodwill of the Complainant’s CARREFOUR mark, this cannot be considered as fair use of the Disputed Domain Name (see section 2.9 of the WIPO Overview 3.0).

The Respondent had the opportunity to assert and explain his purported rights or legitimate interests but did not do so.

Therefore, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the Disputed Domain Name. In light of the above, the Complainant succeeds on the second element of the Policy.

C. Registered and Used in Bad Faith

The Complainant must prove on the balance of probabilities both that the Disputed Domain Name was registered in bad faith and that it is being used in bad faith (see, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd, WIPO Case No. D2006-1052).

Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. Among these factors demonstrating bad faith registration and use is the use of a domain name to intentionally attempted to attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location.

In the present case, it is inconceivable that the Respondent was unaware of the Complainant and its rights in the CARREFOUR mark when it registered the Disputed Domain Name. The Disputed Domain Name includes the Complainant’s distinctive trademark almost in its entirety with the substitution of a single letter. This indicates that the Disputed Domain Name was registered for the purpose of typosquatting. The Respondent has also been the subject of previous UDRP proceedings brought by the Complainant before the registration of the Disputed Domain Name for the domain names <carrefour-sa.com> and <supermercadocarrefour.com>. As a result, the Respondent must have had knowledge of the Complainant’s rights at the time of registering the Disputed Domain Name. The Panel therefore finds that the Respondent’s awareness of the Complainant’s trademark rights at the time of registration suggests bad faith.

The Panel further holds that the substitution of the letter “e” with the “i” in the term “carrefour” is a form of typosquatting which is further evidence of bad faith (ESPN, Inc. v. XC2, WIPO Case No. D2005-0444; WestJet Airlines Ltd. v. Taranga Services Pty Ltd, WIPO Case No. D2010-1814; and Compagnie Générale des Etablissements Michelin v. Terramonte Corp, Domain Manager, WIPO Case No. D2011-1951).

By engaging in typosquatting and by redirecting Internet users to websites which deceive visitors into filling in their contact details and credit card information in order to obtain a purported price, the Respondent intentionally aimed to attract Internet users to visit his website for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location and of the products advertised on the website (see Simyo GmbH v. Domain Privacy Service FBO Registrant / Ramazan Kayan, WIPO Case No. D2014-2227). The Respondent clearly intended to profit from this confusion through identity theft and/or phishing. Such behavior is manifestly considered evidence of bad faith (see section 3.1.4 of the WIPO Overview 3.0).

Before initiating the Complaint, the Respondent has used the website connected to the Disputed Domain Name to refer to a parking page incorporating sponsored links to promote, amongst others, products and services of either the Complainant or of third parties which are either competing with or closely related to the products and services offered by the Complainant. While the intention to earn click‑through-revenue is not in itself illegitimate, the Panel finds that the use of a domain name that is deceptively similar to a trademark to obtain click-through-revenue is found to be bad faith use (see Mpire Corporation v. Michael Frey, WIPO Case No. D2009-0258; L'Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc, WIPO Case No. D2005-0623). The Panel finds that by previously using the Disputed Domain Name incorporating the Complainant’s CARREFOUR trademark in connection with a website containing links to products and services relating to the Complainant’s industry, the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trademark.

Further, in multiple previous decisions under the Policy, the Respondent has been found to have made bad faith registrations and use of domain names that were identical or confusingly similar to known trademarks, including the Complainant’s CARREFOUR trademark (See e.g., Carrefour v. PERFECT PRIVACY, LLC / Milen Radumilo, WIPO Case No. D2018-2201; Carrefour v. Milen Radumilo/United Privacy Corp, WIPO Case No. D2015-1851; Fenix Outdoor AB v. Milen Radumilo/Perfect Privacy, LLC, WIPO Case No. D2016-0333; Celgene Corporation v. Milen Radumilo, WIPO Case No. D2016-0018; Intesa Sanpaolo S.p.A. v. Milen Radumilo Privacy Protection Service, Communigal Communication Ltd., WIPO Case No. D2015-2290; Bharti Airtel Limited v. Milen Radumilo, WIPO Case No. D2015-1948). The Panel finds that this pattern of conduct evidences bad faith registration and use pursuant to paragraph 4(b)(ii) of the Policy.

Additionally, by using a proxy registration service, the Respondent has taken active steps to conceal its identity (see Fifth Third Bancorp v. Secure Whois Information Service, WIPO Case No. D2006-0696, where it was held that the use of a proxy registration service to avoid disclosing the identity of the real party in interest is also consistent with an inference of bad faith when combined with other evidence of evasive and irresponsible conduct).

Finally, by failing to respond to the Complaint, the Respondent did not take any initiative to contest the foregoing. Pursuant to paragraph 14 of the Rules, the Panel may draw the conclusions it considers appropriate.

Therefore, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the Disputed Domain Name was registered and is being used in bad faith. In light of the above, the Complainant also succeeds on the third and last element of the Policy.

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 <carrifour.com> be transferred to the Complainant.

Flip Jan Claude Petillion
Sole Panelist
Date: January 23, 2019