WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Carrefour S.A. v. 梁燕

Case No. D2020-0867

1. The Parties

The Complainant is Carrefour S.A., France, represented by IP Twins S.A.S., France.

The Respondent is 梁燕, China.

2. The Domain Name and Registrar

The disputed domain name <家乐福中国.网址> (<xn--fiq1cy64ad4ev98b.xn--ses554g>) is registered with Knet Registrar Co., Ltd. (the “Registrar”).

3. Procedural History

The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 8, 2020. On April 8, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 9, 2020, 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. On April 9, 2020, the Center received an email communication from a third party inquiring as to the duration of the proceeding. On the same day, the Center replied to the third party with the Parties copied in, requesting the third party to identify himself, clarify his relationship (if any) to the Respondent, and provide information sufficient to establish the legitimacy of his communication in the context of the current proceeding. The Center did not receive any reply.

On April 14, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On April 14, 2020, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.

On April 17, 2020, the Complainant submitted an amendment to the Complaint regarding the payment method related to the filing fee.

The Center verified that the Complaint together with the amendment to 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceeding commenced on May 1, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 21, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 2, 2020.

The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 9, 2020. 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

A. Complainant

The Complainant is a company incorporated in France and listed on the Paris Stock Exchange. The Complainant is a worldwide leader in retail and a pioneer, in 1968, of the concept of hypermarkets. The Complainant had a turnover of EUR 76 billion in 2018.

The Complainant operates more than 12,000 stores in more than 30 countries worldwide, including China, where the Respondent resides, under the trade mark CARREFOUR (the “Trade Mark”), with more than 384,000 employees worldwide and 1.3 million daily unique visitors in its stores.

The Complainant is the owner of registrations in jurisdictions worldwide for the Trade Mark, including international registration No. 351147, registered since October 2, 1968.

The Complainant is also the owner of registrations in China for the Chinese language version of the Trade Mark, 家樂福/家乐福, including registration No. 798834, registered since December 14, 1995, and registration No. 955522, registered since February 28, 1997¹.

B. Respondent

The Respondent is apparently an individual resident in China.

C. The Disputed Domain Name

The disputed domain name was registered on September 28, 2019.

D. Use of the Disputed Domain Name

The disputed domain name has not been used.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.

B. Respondent

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

6. Discussion and Findings

6.1 Language of the Proceeding

The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.

Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.

The Complainant has requested that the language of the proceeding be English. The Complainant contends that, as a French entity, it is not able to communicate in Chinese, and it is not in a position to conduct this proceeding in Chinese without a great deal of additional expense and delay due to the need for translation of the Complaint.

The Panel would have accepted a response in Chinese, but the Respondent did not file a response and did not file any submissions with respect to the language of the proceeding.

In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.

Although there is no evidence before the Panel to support a conclusion that the Respondent is conversant in English, the Panel notes equally that there is no evidence to support the conclusion that the Respondent is not conversant in English, that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese.

In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.

Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.

6.2 Substantive Elements of the Policy

The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in both the English and Chinese language versions of the Trade Mark acquired through use and registration.

The disputed domain name incorporates the entirety of the Chinese language version of the Trade Mark (see WIPO Overview 3.0, section 1.7). The addition of “中国” (“China” in Chinese) does not prevent a finding of confusing similarity. The generic Top-Level Domain (“gTLD”) “.网址” (“.url” in Chinese), as a standard registration requirement, is disregarded under the first element confusing similarity test.

The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:

(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed 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 disputed domain name even if the respondent has acquired no trade mark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.

The Respondent has failed to show that the Respondent has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has not been used.

There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.

There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.

In addition, the Panel notes the nature of the disputed domain name carries a risk of implied association (see WIPO Overview 3.0, section 2.5.1).

In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Given the notoriety of the Complainant and of its Trade Mark (including in China, where the Respondent is based); the fact the disputed domain name is confusingly similar to the Trade Mark; the lack of any substantiated credible explanation from the Respondent; and the passive use of the disputed domain name, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time she registered the disputed domain name.

The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.

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 <家乐福中国.网址> (<xn--fiq1cy64ad4ev98b.xn--ses554g>) be transferred to the Complainant.

Sebastian M.W. Hughes
Sole Panelist
Dated: June 23, 2020

¹ This Panel undertook limited factual research regarding the trademark registration for 家乐福. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.8.