CENCOSUD S.A. v. Renzo Maso
Claim Number: FA2007001902575
Complainant is CENCOSUD S.A. (“Complainant”), represented by Alfredo Montaner of Sargent & Krahn Procuradores Internacionales De Patentes Y Marcas Ltda, Chile. Respondent is Renzo Maso (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cencosud.br.com>, registered with 1API GmbH.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Alan L. Limbury, as Panelist.
Complainant participated in the mandatory CentralNic Mediation and the mediation process was terminated on June 18, 2020.
Complainant submitted a Complaint to the Forum electronically on June 26, 2020; the Forum received payment on July 2, 2020.
On July 2, 2020, 1API GmbH confirmed by e-mail to the Forum that the <cencosud.br.com> domain name is registered with 1API GmbH and that Respondent is the current registrant of the name. 1API GmbH has verified that Respondent is bound by the 1API GmbH registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On July 8, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@cencosud.br.com. Also on July 8, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 3, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for the CDRP Policy (“CDRP Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP Policy, the CDRP Rules, the Forum’s Supplemental Rules to the CDRP Policy and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Cencosud S.A., is a multi-format retail company. Complainant has rights in the CENCOSUD mark based upon registration with the Mexican Institute of Industrial Property and other trademark agencies. Respondent’s <cencosud.br.com> domain name is confusingly similar to Complainant’s CENCOSUD mark.
Respondent does not have rights or legitimate interests in the <cencosud.br.com> domain name. Respondent has no relation or connection to the disputed domain name nor to Complainant’s mark. Additionally, Respondent does not use the disputed domain name for any legitimate purpose and instead simply trades on the goodwill and reputation of Complainant’s business.
Respondent registered or uses the <cencosud.br.com> domain name in bad faith. Respondent impersonates Complainant through email for fraudulent purposes. Additionally, Respondent makes no active use of the webpage associated with the disputed domain name. Finally, Respondent was fully aware of Complainant’s CENCOSUD mark at the time of domain name registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
Paragraph 15(a) of the CDRP Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the CDRP Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered or is being used in bad faith.
The CDRP Policy also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint. As mentioned, this requirement has been satisfied.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has shown that it has rights in the CENCOSUD mark based upon its registration with the Mexican Institute of Industrial Property, Reg. No. 1,468,245, registered Aug. 8, 2013. The Panel finds Respondent’s <cencosud.br.com> domain name to be identical to Complainant’s CENCOSUD mark since it entirely reproduces the mark and merely adds the inconsequential “.br.com” extension, which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to the Respondent of the dispute, the use by the Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the 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 domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The Panel finds that the CENCOSUD mark is distinctive and widely known. The disputed domain name was registered on October 2, 2019. Complainant exhibits copies of emails dated February 26, 2020 and March 6, 2020 sent from the disputed domain name and ending with Complainant’s genuine website address “www.cencosud.com” in which Respondent attempts to impersonate Complainant in reference to fraudulent purchase requests.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the disputed domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant has established this element.
As mentioned, the disputed domain name was registered on October 2, 2019, several years after Complainant registered its widely known CENCOSUD mark. Respondent used the disputed domain name in February and March 2020 to send emails containing Complainant’s genuine website address “www.cencosud.com” in attempts to impersonate Complainant in reference to fraudulent purchase requests.
These circumstances satisfy the Panel that the domain name is being used in bad faith.
Complainant has established this element.
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cencosud.br.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: August 10, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page