Complainant is Accor of France, represented by Dreyfus & associés of France.
Respondent is Eren Atesmen of California, United States of America.
The disputed domain name <accorreviews.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 28, 2009. On May 29, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On May 29, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that 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” 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 4, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 24, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 25, 2009.
The Center appointed Nasser A. Khasawneh as sole panelist in this matter on June 29, 2009. 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.
Complainant is one of the world's largest groups in travel, tourism and corporate services. Complainant operates the websites “www.accor.com” and “www.accorhotels.com” used for hotel accommodation services. Complainant owns numerous trademark registrations throughout the world for ACCOR, among them International Trademark No. 480492, filed on November 10, 1983, renewed and covering products and services in classes 16, 39, and 42; and International Trademark No. 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 disputed domain name <accorreviews.com> was registered to Respondent on February 18, 2009. The domain name resolves to a website providing various commercial links to Complainant's websites and those of its competitors in the hotel industry.
Complainant contends that the disputed domain name reproduces exactly the Complainant's ACCOR trademark and is confusingly similar to Complainant's trademark. Complainant alleges that the disputed domain name only adds the word “reviews” to the trademark, which is not sufficient to distinguish the disputed domain name from Complainant's trademark and company name. Complainant contends that Internet users could be confused by Respondent's website under the domain name <accorreviews.com> and would conclude that the website consists of reviews of Complainant's hotels and restaurants, collected and posted by Complainant.
Complainant avers that Respondent is neither affiliated with Complainant nor authorized by Complainant to use and register its trademarks or to register domain names incorporating its trademarks; that Respondent has no prior right or legitimate interest in the domain name; and that numerous trademarks for ACCOR preceded the registration of the disputed domain name <accorreviews.com>. Complainant also notes that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, since the disputed domain name is not used as a review: it is linked to a website with advertising links, which appear to generate income for Respondent.
Addressing bad faith under the Policy, Complainant contends that the trademark ACCOR is well-known, citing, inter alia, the panel decision in ACCOR v. Eliah Zusstone, WIPO Case No. D2006-0362. Complainant contends that Respondent does not use the disputed domain name for the purpose suggested by the addition of the term “reviews” to the ACCOR marks, since the pages to which the domain name resolves are not used to post reviews. Respondent therefore had no other reason to choose the domain name than to profit from the reputation of Complainant.
Complainant alleges that the appearance of links on Respondent's website which direct users to Complainant's websites indicate that Respondent actually knew of Complainant's trademarks. Such links and the links to Complainant's competitors are likely to generate revenues for Respondent which, under cases cited by Complainant,1 have been found to be circumstances establishing bad faith use as well as bad faith registration.
On the basis of these contentions, Complainant seeks transfer of the disputed domain name.
Respondent did not reply to Complainant's contentions.
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Complainant must establish these elements even if the respondent does not reply. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064. In the absence of a Response, the Panel may also accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).
Although the disputed domain name <accorreviews.com> is not identical to Complainant's trademarks, the Panel agrees with Complainant that Respondent's domain name is confusingly similar.
Panels disregard the domain name suffix in evaluating confusing similarity. E.g., VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315.
The Panel concludes that the addition of the descriptive term “reviews” does not negate the confusion created by Respondent's complete inclusion of the ACCOR trademark in the disputed domain name. E.g., Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH v. Andrey Mitrofanov, WIPO Case No. D2007-1772; Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen mbH v. Keyword Marketing, Inc., WIPO Case No. D2006-1137; Hoffmann-La Roche Inc. v. Aneko Bohner, WIPO Case No. D2006-0629.
The Panel finds therefore that the disputed domain name is confusingly similar to the registered trademark of Complainant and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
The Panel also concludes that Respondent has no rights or legitimate interests in the domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i) – (iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of rebuttal passes to the respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005).
Based on exhibits accompanying the Complaint, Respondent's website presently appears to offer sponsored link advertising.2 Respondent's website also listed links to websites promoting Complainant's competitors. By diverting traffic to third parties using paid link advertisements, the Panel finds that Respondent is using Complainant's marks for its own commercial purposes. See, e.g., The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 (“[t]he Panel is free to infer that Respondent is likely receiving some pecuniary benefit . . . in consideration of directing traffic to that site” (citing COMSAT Corporation v. Ronald Isaacs, WIPO Case No. D2004-1082)). See also Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626; Sanofi-aventis v. Montanya Ltd., WIPO Case No. D2006-1079.
In the absence of a response, the Panel accepts as true Complainant's allegations that Respondent has no authorization to use the ACCOR mark in its domain name and that Respondent is not commonly known by the disputed domain name. Respondent is seeking to attract Internet users through Complainant's widely known marks for Respondent's own commercial purposes.
The Panel therefore finds that Respondent's use of the disputed domain name demonstrates Respondent's lack of a legitimate non-commercial interest in, or fair use of, the domain name. See e.g., Pfizer Inc. v. jg a/k/a Josh Green, WIPO Case No. D2004-0784. The Panel also finds that since there are no reviews posted on Respondent's website, there is no bona fide offering of goods or services by Respondent, and that the Complaint makes out a prima facie case.
Filing no response, Respondent has not rebutted Complainant's prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the domain name.
Accordingly, the Panel concludes that paragraph 4(a)(ii) of the Policy is satisfied.
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and use. Policy, paragraph 4(b)(iv). See, e.g., L´Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc, WIPO Case No. D2005-0623. Panels may draw inferences about bad faith registration or use in light of the circumstances, including a respondent's concealment of identity or failure to reply to a complaint. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The Panel infers that Respondent acquired the disputed domain name intending to trade on the reputation of Complainant's widely known trademarks. Complainant's ACCOR mark was registered internationally and widely used for decades to market products and services similar to those offered on Respondent's website before the disputed domain name was registered by Respondent. There can be little doubt that Respondent had full knowledge of the existence of Complainant's trademarks. See British Sky Broadcasting Group plc, v. Mr. Pablo Merino and Sky Services S.A., WIPO Case No. D2004-0131 (“It is reasonable to conclude that only someone who was familiar with the Complainant's mark would have registered identical domain names.”).
The Panel finds, therefore, that Respondent has deliberately attempted to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with Complainant's mark. This constitutes substantial evidence that the disputed domain name was registered and is being used in bad faith.
Other circumstances also support the Panel's conclusion that Respondent registered and is using the disputed domain name in bad faith. For instance, the sponsored links on the website direct users to competitors of Complainant, without authorization or legitimate rights to use the confusingly similar domain name in such a manner. See, e.g., Nikon, Inc. and Nikon Corporation v. Technilab, Inc., WIPO Case No. D2000-1774 (use of <nikoncamera.com> domain name for site selling Nikon products and those of its competitors was improper use of complainant's mark to attract Internet users to respondent's site for commercial gain by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement of site).
Finally, Respondent has chosen to refrain from responding to the Complaint. Such circumstances taken together support an inference of bad faith registration and use.
In the absence of a response from Respondent, this Panel must conclude on the record before it that Respondent has registered and is using the disputed domain name in bad faith and that paragraph 4(a)(iii) of the Policy is also satisfied.
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 <accorreviews.com> be transferred to Complainant.
Nasser A. Khasawneh
Dated: July 10, 2009
1 Complainant cites among others the panel decisions in Sanofi-aventis v. Protected Domain Services and Jan Hus, Husiten, WIPO Case No. D2008-0463; Société Nationale des Chemins de Fer Français v. ostrid company, Domains by Proxy, Inc., WIPO Case No. D2008-0627; Educational Testing Service (ETS) v. International Names Ltd., WIPO Case No. D2007-0449; Pepperdine University v. The CJ Group, LLC, WIPO Case No. D2007-1389; Mobile Communication Service Inc. v. Webreg, RN, WIPO Case No. D2005-1304.
2 Complaint, Annex 4. The Panel has also viewed Respondent's website and this confirms that Respondent is using sponsored advertising links on the website.