WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ACCOR v. Eliah Zusstone
Case No. D2006-0362
1. The Parties
The Complainant is ACCOR, Evry, France, represented by Cabinet Dreyfus & Associés, Paris, France.
The Respondent is Eliah Zusstone, Louisville, Kentucky, United States of America.
2. The Domain Name and Registrar
The disputed domain name <accordamerica.com> is registered with Melbourne IT trading as Internet Names Worldwide.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 22, 2006. On March 22, 2006, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On March 23, 2006, Melbourne IT trading as Internet Names Worldwide 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, billing, 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 April 18, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 8, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11, 2006.
The Center appointed Lone Prehn as the sole panelist in this matter on May 23, 2006. 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 French company which has for the past forty years provided travel, tourism and corporate services. The Complainant runs a well-known group of hotels as it has been established in ACCOR v. J. Lee, WIPO Case No. D2005-0137. The Complainant is the owner of the trademark ACCOR registered as International Reg. Nos. 742032, 537520, 480492, 687060, 756453, and 727696.
According to the registrar, the domain name in dispute was registered by the Respondent in 2005. The domain name <accordamerica.com> directs to a search engine with links to various websites, including websites relating to travel, hotels and flights.
On July 20, 2005 and October 18, 2005, the Complainant sent warning letters by e-mail and registered mail, to the Respondent. The Respondent did not reply.
5. Parties’ Contentions
The Complainant submits that (A) the domain name <accordamerica.com> is confusingly similar to its wellknown trademark ACCOR in which it has rights; and (B) the Respondent has no rights or legitimate interests in respect of the domain name; and (C) the domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the Complainant has established that it has rights to the trademark ACCOR by virtue of International Reg. Nos. 742032, 537520, 480492, 687060, 756453, and 727696.
The Panel takes note of the fact that it has been established in ACCOR v. J. Lee, WIPO Case No. D2005-0137 that the Complainant’s trademark ACCOR is wellknown.
The domain name <accordamerica.com> consists of the word “accor”, the dumb letter “d” and a geographical indication, “america”. The Panel observes that neither ACCOR nor ACCORD are descriptive terms in connection with search engines providing sponsored links to other websites.
In the Panel’s view, the present case qualifies as a case of ‘typosquatting’. The domain name is construed of a slight alphabetical variation from a wellknown mark, ACCOR, and the addition of a geographical indication, AMERICA.
UDRP jurisprudence offers many examples of confusing similarity brought about through easily made typing errors by an Internet user – particularly when the mark is another language from that of the user’s mother tongue. The Panel considers it likely that Internet users would mistake the spelling of the arbitrary word ACCOR with the more commonly known English word ACCORD.
In this regard, the Panel refers to earlier typosquatting cases, see for example, Bang & Olufsen A/S v. Unasi Inc., WIPO Case No. D2005-0728, (<bag-olufsen.com>, <bagolufsen.com>, <bang-olusen.com>, and <bangolusen.com>, trademark BANG OLUFSEN).
Similarly, UDRP jurisprudence offers many examples of the finding that a domain name comprised of the Complainant's trademark followed by country designations has been held to be confusingly similar, see for example, PepsiCo, Inc. v. Kieran McGarry, WIPO Case No. D2005-0629, (<pepsiusa.com>, trademark PEPSI).
The Panel considers that the combination of the typosquatting of the Complainant’s trademark ACCOR into ACCORD, and the addition of the geographical indication AMERICA in <accordamerica.com> constitutes a domain name which is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
The Panel has considered from the Complainant’s allegation that the Respondent does not have any rights or legitimate interests in respect of the domain name at issue. Since the Respondent is in default, these allegations have not been contested.
Because it is generally difficult for the Complainant to prove the fact that the Respondent does not have any rights or legitimate interests in the domain name at issue, previous decisions under the UDRP have found it sufficient for the Complainant to make a prima facie showing of its assertion.
The Panel finds that the circumstances mentioned and evidenced by the Complainant are sufficient to establish a prima facie showing that the Respondent has no rights or legitimate interests in the domain name at issue. The Respondent has not been authorized in any way to use the Complainant’s mark, nor does he make any legitimate non-commercial or fair use of the domain name.
The Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the domain name at issue.
C. Registered and Used in Bad Faith
The Panel has considered the Complainant’s assertions and evidence with regard to the Respondent’s registration and use of the domain name in bad faith. By not submitting a response, the Respondent has failed to invoke any circumstances that could demonstrate that the Respondent did not register and use the domain name at issue in bad faith.
The Complainant has demonstrated that its longstanding use of the registered ACCOR marks world-wide for almost 40 years, places the mark in the category of wellknown trademarks with a high degree of distinctiveness. As a result thereof, the mark enjoys a broad scope of protection. The Panel finds it likely that the Respondent was aware of the existence of the Complainant and its trademark rights at the time the domain name was registered.
The Policy paragraph 4(b) sets forth four non-comprehensive illustrations of situations that may be deemed to reflect “bad faith” registration and use of a domain name. The Panel finds that one of these has been established, i.e. attempting to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship or affiliation of the website.
The domain name <accordamerica.com> directs to a kind of web portal “under construction” with links to different services some of which are competing with those of the Complainant, including i.e. travel. This shows that the Respondent knows that Internet users recognize the Complainant’s ACCOR mark as identifying the Complainant’s business.
The Panel finds that this use of the domain name for commercial gain reflects the Respondent’s attempt to attract users to its website by improperly associating itself with the Complainant’s mark or misleadingly suggesting an affiliation with, or sponsorship by, the Complainant.
Taking these circumstances into account, the Panel finds that the Respondent registered and used the domain name in bad faith.
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 <accordamerica.com> be transferred to the Complainant.
Dated: June 6, 2006