WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ACCOR v. Vista Holdings, Inc.
Case No. D2008-0291
1. The Parties
The Complainant is Accor, Evry, France, represented by Cabinet Dreyfus & Associés, France.
The Respondent is Vista Holdings, Inc., Minneapolis, Minnesota, United States of America.
2. The Domain Name and Registrar
The disputed domain name <accorhoteels.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 27, 2008. On February 29, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name. On February 29, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 March 6, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 26, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 27, 2008.
The Center appointed Dietrich Beier as the sole panelist in this matter on April 7, 2008. 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 one of the world’s largest groups in travel, tourism and corporate services. With more than 170,000 employees, the Complainant owns about 4,000 hotels in 90 countries worldwide including the United States of America.
The group Accor holds inter alia the known trademarks Novotel, Ibis, and Sofitel. The Complainant inter alia operates the websites “www.accor.com” and “www.accorhotels.com” used for accommodation services. The Complainant is the owner of numerous trademark registrations throughout the world for ACCOR, among them ACCOR International Trademark No. 480492, filed on November 10, 1983, renewed and covering products and services in classes 16, 39, and 42 and International Trademark 727696, filed on December 28, 1999, renewed, covering products and services in classes 16, 39, and 42, inter alia for hotel and restaurant services and accommodation.
The Complainant noticed that the domain name <accorhoteels.com> had been registered by the Respondent. The domain name <accorhoteels.com> was registered on May 11, 2006. This domain name is linked to a website providing various commercial links in the field of hotels. The Complainant sent a cease-and-desist letter to the Respondent on March 21, 2007, asking inter alia for the transfer of the domain name and received on April 7, 2008 an answer confirming the Respondent’s willingness to transfer the domain name. Such transfer, however, never took place. Instead, the WHOIS Database changed and the status of the registrant became anonymous. Then, the Complainant sent on June 25, 2007 a cease-and-desist letter to the registrar in order to contact the registrant which was at the end (again) the Respondent. The Complainant sent a new cease-and-desist letter to the Respondent on July 24, 2007 to which the Respondent did not answer.
5. Parties’ Contentions
Complainant argues that the disputed domain name reproduces exactly the Complainant’s trademark ACCOR and is accordingly confusingly similar. Furthermore, the disputed domain name only has one additional letter “e” to Complainant’s domain name <accorhotels.com> which must be considered as cybersquatting in the form of “typosquatting”. It could mistake those consumers searching for the website “www.accorhotels.com” who have made a typing error. Those Internet users could think that the domain name <accorhoteels.com> belongs to the Complainant.
The Respondent is neither affiliated with the Complainant nor authorized by the Complainant to use and register its trademarks or to seek the registration of any domain names incorporating said trademarks. Furthermore, the Respondent has no prior right or legitimate interest in the domain name. The numerous trademarks for ACCOR preceded the registration of the domain name <accorhoteels.com>.
Regarding the bad faith requirements, the Complainant argues that the trademark ACCOR is well-known citing the ACCOR v. Eliah Zusstone, WIPO Case No. D2006-0362, regarding the domain name <accordamerica.com> where the trademark ACCOR was recognized as being a notorious mark. Furthermore, the term “hoteels” does not have any meaning in English. The Respondent had no other reason to choose the disputed domain name than to profit from the reputation of Complainant. Therefore, these circumstances are a clear indication that the Respondent had the Complainant in mind while registering the domain name in dispute and wanted to create a likelihood of confusion and to disrupt the Complainant’s business, as it used this domain name <accorhoteels.com> with sponsored links for hotels. Such services are in competition with the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to succeed in its claim, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the domain name in dispute 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 with respect to the domain name; and
(iii) the domain name has been registered and used in bad faith.
A. Identical or Confusingly Similar
The Complainant has established the fact that it has valid trademark rights for ACCOR in several classes, among them class 42 for hotel and restaurant services and accommodation.
The trademarks of the Complainant and the domain name in question <accorhoteels.com> are identical with respect to the sole distinctive element “accor” of the disputed domain name whereas the further element “hoteels” is a misspelling of the English term “hotels” which is obvious already from the high phonetical similarity of the terms “hotel” and “hoteel”. The terms “hotel” and accordingly “hoteel” are descriptive for hotel and accommodation services as regards the Complainant’s trademark and the domain name. That a deviation in the form of a typographical error, namely, an additional letter “e” appears in the non distinctive part of the disputed domain name does not change this evaluation as other panels have decided Yahoo!, Inc. v. Cupcake Patrol and John Zuccarini, WIPO Case No. D2000-0928 (cf. confusing similarity was affirmed between the trademark YAHOO and the disputed domain name <yahoomesenger.com>).
The Panel therefore considers the domain name in question to be confusingly similar to the trademark ACCOR in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent has no rights in the domain name in question, since the Respondent is not a licensee of the Complainant, nor has the Complainant granted any permission or consent to the Respondent to use its trademarks. Furthermore, the Respondent has no legitimate interest in the domain name in question, since there is no indication that the Respondent is commonly known by the name “accor” or “accorhoteels” nor that the Respondent is using the domain name in question in connection with a bona fide offering of goods or services. Also a noncommercial or fair use is neither substantiated nor evidenced by the Respondent.
The Complainant has presented a prima facie case indicating that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent has not filed any response in this proceeding, and has therefore failed to rebut the Complainant’s prima facie case.
The Panel therefore considers that the Respondent has no rights or legitimate interests in respect of the domain name in question in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The panels in the decisions ACCOR v. J Lee, WIPO Case No. D2005-0137 and ACCOR v. Eliah Zusstone, supra have affirmed ACCOR as being well-known. In the present case, the Respondent’s awareness of the mark ACCOR of the Complainant can already be derived from the fact that it combined the trademark of the Complainant with the term “hoteels” obviously derived from the known word “hotels” using the likely possibility of a typographical error by an Internet user duplicating the letter “e”. It is not likely that the Respondent registered the disputed domain name including such a typographical error for “hotels” without knowing the Complainant being the owner of more than 4,000 hotels worldwide.
The Respondent’s bad faith use of its domain name is further established by the fact of its using the element “accor” in its domain name knowing the Complainant and for this reason intentionally attempting to attract, for commercial gain (i.e., by way of sponsored links) Internet users to its website by creating a likelihood of confusion with the marks the Complainant has rights in as to the source, sponsorship, or affiliation of its website, or as regards the services offered on the website. Thus, the test of paragraph 4(b)(iv) of the Policy is met.
Furthermore, by not submitting any response, the Respondent has failed to invoke any circumstances that could demonstrate that it did not register and use the domain name in bad faith.
The Panel therefore considers the domain name in question to have been registered and used in bad faith in accordance with paragraph 4(a)(iii) of the Policy.
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 <accorhoteels.com> be transferred to the Complainant.
Dated: April 21, 2008