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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Groupe Auchan v. R. Wijma

Case No. D2007-0175

 

1. The Parties

The Complainant is Groupe Auchan, Croix, France, represented by Cabinet Dreyfus & Associйs, France.

The Respondent is R. Wijma, Netherlands.

2. The Domain Name and Registrar

The disputed domain name <auchandirect.mobi> is registered with Key-Systems GmbH dba domaindiscount24.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 7, 2007. On February 9, 2007, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the domain name at issue. On February 14, 2007, Key-Systems GmbH dba domaindiscount24.com 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 February 23, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 15, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 16, 2007.

The Center appointed Thomas Hoeren as the sole panelist in this matter on March 29, 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 worldwide leading retail group, created in France in 1961. In 1981, Auchan started its worldwide expansion. It has also diversified its activities to propose services such as real estate and banking. The Complainant offers supermarket online services through its website “www.auchandirect.fr” .

The Complainant’s trademark AUCHAN and is protected, in particular in Europe, by means of several trademark registrations, which include:

- International trademark AUCHAN n°658656, in classes 1, 6, 7, 10, 12, 13, 14, 15, 17, 19, 20, 22, 23, 24, 26, 27, 28, 31, 33, 34, 35, 38, 39, 40, 41, 42;

- International trademark AUCHAN n° 625533 in classes 1 to 42;

- Community trademark AUCHAN, n°000283101, in classes 1 to 42.

The Complainant is also the owner of the following two AUCHAN DIRECT trademarks:

- French Trademark AUCHAN DIRECT, n° 3049208, registered on October 6, 2000 in classes 1,2, 3,4, 5,6,7 8, 9,10, 11, 12, 13, 14, 15, 16, 17, 18,19, 20, 21, 13, 24, 25,26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,37, 38, 39, 40, 41 and 42;

- International Trademark AUCHAN DIRECT, n° 759476 registered on February 28, 2001 in classes 3, 5, 8, 9,11,14, 18, 20, 21, 24, 25, 29, 30, 31, 32, 33, 35, 36, 38, and 42.

The Complainant operates among others the following domain names reflecting its trademark:

- <auchandirect.eu>, registered on June14, 2006;

- <auchandirect.com>, registered on August 23, 2000;

- <auchandirect.net>, registered on November 30, 2006;

- <auchandirect.org>, registered on December 9, 2005;

- <auchandirect.fr>, registered on July 11, 2002;

- <auchandirect.biz>, registered on November 19, 2001.

The Respondent has registered the disputed domain name; the website is directing Internet users to a web page offering said domain name for sale. The Complainant sent a warning letter by e-mail and registered letter on January 11, 2007, to the Respondent and to the registrar, asking them to transfer amicably the disputed domain name on the basis of the Complainant’s trademarks rights. The Respondent refused to transfer said domain name amicably and asked the Complainant for the amount of €400 to proceed to the transfer of disputed domain name.

 

5. Parties’ Contentions

A. Complainant

The Complainant submits that the language of the administrative proceeding should be English, despite the fact that the registration agreement was available in German and in English.

The Complainant argues that the domain name <auchandirect.mobi> is identical to the AUCHAN DIRECT trademarks registered by the Complainant, and implies a high risk of confusion, as a consumer may think that this domain directly refers to the Complainant’ services.

The Complainant submits that the Respondent is not affiliated with the Complainant in any way. The Complainant has not authorized the Respondent to use and register its trademark and service marks, or to seek the registration of any domain name incorporating the Complainant’s trademark.

The domain name was registered and used in bad faith as the Respondent is using the domain name <auchandirect.mobi> with the intention of selling this domain name to its rightful owner with the intent to make profit.

B. Respondent

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

 

6. Discussion and Findings

The Panel has considered the issue of the language of the proceeding. Before filing this Complaint, the Complainant tried to find an amicable settlement by sending a letter of cease and desist via email; this letter was in English. The Respondent has never manifested its ignorance of English or its difficulty to communicate in this language. Furthermore, the Respondent answered to the Complainant’s cease and desist letter in English.

Furthermore, under paragraph 5 section 12 of the concerned registrar’ registration agreement, it is reported that “Both the English and German version of theses Terms and Conditions are valid”. See Sociйtй des Hфtels Mйridien. v. ABC-Consulting, WIPO Case No. D2004-0792. Previous WIPO Panels have held that proceedings regarding a domain name registered with this registrar could be held in English.

On the basis of the provision in paragraph 11(a) of the Rules and in view of the circumstances in the case, the Panel decides that the language of this proceedings shall be English. See Deutsche Messe A.G. v. Kim Hyungho, WIPO Case No. D2003-0679, where the panel stated that the language of proceedings should not lay an undue burden on the Complainant.

Paragraph 4(a) of the Policy lists three elements which a complainant must satisfy in order to succeed:

i. the domain name is identical or confusingly similar to a trade mark 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

With regard to the first element, the Panel finds that the Complainant has demonstrated its registered rights to the trademark AUCHANDIRECT. The Complainant has put forward proof of its trademark rights as annexed in the Complaint. The Complainant has also demonstrated that the disputed domain name <auchandirect.info> is confusingly similar to its trademark AUCHANDIRECT. It is well accepted that a top-level domain, in this case “.mobi”, is to be ignored when assessing identity or confusing similarity of a mark and a domain name (see, e.g., Screwfix Direct Ltd v. Ajay Kaler, WIPO Case No. D2006-1309).

The Complainant has therefore met its burden of proving that the domain name at issue is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i).

B. Rights or Legitimate Interests

As to the second element, the Complainant asserts, inter alia, that there is no relationship between the Complainant and the Respondent that would give rise to any license, permission, or authorization by which the Respondent could own or use the disputed domain name. The Respondent has not refuted these assertions. Nor has the Respondent, in failing to respond, given the Panel any reason for why it does have rights or legitimate interests in the domain name.

The Panel finds that the second test of the Policy, paragraph 4(a) has been satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that for the purposes of paragraph 4(a)(iii) of the Policy, “the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the Respondent has registered or 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 that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or

(ii) that 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) that the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) that by using the domain name, the Respondent had intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s 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 the Respondent’s website or location.”

The message “this domain is for sale” constitutes satisfactory evidence that the Respondent registered the domain name in bad faith as its purpose in registering the domain name was to sell it in contravention of the Policy, see e.g. Mr. Donning Eric v. Nyunhwa Jung, WIPO Case No. D2003-0689). This behavior clearly shows the Respondent’s bad faith use inasmuch the Respondent seeks to take advantage of a widely-known trademark for commercial gain. Finally, the Respondent did not accept the Complainant’s offer to reimburse its registration fees. Instead, the Respondent asked for the lump sum of €400, which is far in excess of the normal out-of-pocket expenses directly related to the registration of a domain name. It is clear that the Respondent tried to make easy profit out of the domain name, if not by successfully trading on the fame of the trademark through the website, then by re-selling it to the Complainant for an unreasonable sum exceeding by far the domain name registration and maintenance fees paid by the Respondent.

These facts constitute obvious evidence of both registration and use in bad faith under paragraph 4(b) (ii) 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 <auchandirect.mobi> be transferred to the Complainant.

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Thomas Hoeren
Sole Panelist

Dated: April 12, 2007