WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ACCOR v. Marc Zibi
Case No. D2003-0561
1. The Parties
The Complainant is ACCOR, Evry, France, represented by Cabinet Ores, Paris,France.
The Respondent is Marc Zibi, Netanya, Israel.
2. The Domain Name and Registrar
The disputed domain name <mercurehotel.com> is registered with Network Solutions, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 17, 2003. On July 17, 2003, the Center transmitted by email to Network Solutions, Inc. a request for registrar verification in connection with the domain name at issue. On July 28, 2003, Network Solutions, Inc. 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 July 29, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was August 18, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on August 19, 2003.
The Center appointed Anders Janson as the sole panelist in this matter on August 25, 2003. 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 asserted, and provided evidence in support of, the following facts, which the Panel finds established:
ACCOR is the owner of registered trademarks No 100330, "MERCURE", registered on December 3, 1996, and registration No 100810, logotype including the name "MERCURE HOTELS", registered on February 4, 1997, both in Israel and both in the class 42; hotel and restaurant services, hotel and temporary accommodation reservation services.
The Panel notes that the registration dates of all of the above referenced registrations predate the date of registration of the disputed domain name by the Respondent.
The Complainant further asserted that ACCOR is the owner of numerous trademarks throughout the world but has presented no evidence thereof. However, the assertion has not been challenged by the Respondent, and the Panel therefore finds that the allegation shall be considered established in this matter.
The Complainant has a chain of hotels under the well-known trademark "MERCURE", and has nine hotels in Israel, six of which are Mercure Hotels. The Panel notes that one of these Mercure Hotels is situated in Netanya, which is the city stated in the Respondentís address.
The Complainant has by registered letter notified the Respondent of the alleged infringement. The Respondent did not reply.
The Respondent is an individual with a stated address in Israel and with no affiliation with the Complainant. The Respondent has not obtained the Complainantís permission to register, or to seek registration of any domain name incorporating the trade mark "MERCURE" or "MERCURE HOTELS".
The disputed domain name <mercurehotel.com> was registered by the Respondent with Network Solutions Inc. on March 30, 1999. The disputed domain name is not linked to an active website. The website to which it is linked informs the user that the website is under construction and in addition contains links of related topics, such as hotels in various cities including discount offers.
5. Partiesí Contentions
The Complainant contends that:
- the disputed domain name is identical and confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name was registered and is being used in bad faith; and
- the disputed domain name <mercurehotel.com> should be transferred to the Complainant.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The domain name at issue is <mercurehotel.com>. Complainant is the holder of a number of registered trademarks throughout the world, inter alia "MERCURE" and "MERCURE HOTELS" in Israel. The Complainant owns six hotels in Israel under the name MERCURE. The Complainant is contending the Respondent is attempting to "typo-squat" on Complainantís mark "MERCURE HOTELS". The Complainant establishes that the only difference between Complainantís mark "MERCURE HOTELS" and the disputed domain name is the omission of the Ės resulting in a change from plural form to singular form of the word "hotel".
The Respondent does not contest this supposition.
The Panel considers <mercurehotel.com> confusingly similar to the mark "MERCURE HOTELS" owned by the Complainant. The Complainant furthermore owns the mark "MERCURE", which is the distinctive term in the mark which the Panel finds is internationally well known and recognizable. The Panel therefore holds that the Complainant has established element (i) of the Policy's paragraph 4(a).
B. Rights or Legitimate Interests
The Respondent has not filed a Response in accordance with the Rules, paragraph 5. In those circumstances, when Respondent clearly has no obvious connection with the disputed domain name, the mere assertion from the Complainant that the Respondent has no right or legitimate interest is enough to shift the burden of proof to the Respondent to demonstrate that such right and legitimate interest exists.
The Respondent has not demonstrated or argued that he used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services or that any other right or legitimate interest exists. Registration of a domain name in itself does not establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy.
In conclusion, the Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain name and has no obvious connection to it. The Panel therefore holds that the Complainant has established element (ii) of the Policy's paragraph 4(a).
C. Registered and Used in Bad Faith
Finally the Panel has to consider the question of the disputed domain name having been registered and used in "bad faith."
Paragraph 4(b) of the Policy identifies, without limitation, circumstances that shall be evidence of the registration and use of the domain name in bad faith for the purpose of paragraph 4(a)(iii). The circumstances specifically named in the Policy, paragraph 4(b), does not by necessity involve either action, nor inaction, in relation to the disputed domain name. Inaction can, in certain circumstances constitute a domain name being used in bad faith. In addition, the circumstances stated under paragraph 4(b) are not exclusive.
The Respondent has not presented any reasons, evidence or arguments of a legitimate interest in using the disputed domain name. There are no obvious reasons for the Respondent to have a legitimate use of the domain name. The Respondent has refrained from responding to both the Complainantís notification and the Complaint. Further more, the Complainant is the registered owner of the trade marks "MERCURE" and "MERCURE HOTELS" which have been established by the Panel to be well-known and recognizable. The Panel has further established that the Complainant owns six hotels in Israel under the name "MERCURE", one of which is situated in the same city as that of the Respondent according to the stated address. The Panel considers it highly unlikely that the Respondent by coincidence have registered the disputed domain name, which differs only by the omission of the "-s" from the word "hotels" resulting in the singular form of the word. In addition, the Respondent has no apparent connection with the Complainant, or the web-site linked to the domain name. Finally, the web-site links to competitors, which may confuse a user in search of information about a Mercure Hotel, and may also tarnish the Complainantís mark. Finally, the disputed domain name prevents the Complainant for registering the domain name.
Considering all of the above, the Panel finds that it is not possible to conceive of any plausible legitimate use of the domain name by the Respondent. In light of these particular circumstances, The Panel therefore concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to 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 <mercurehotel.com> be transferred to the Complainant.
Dated: September 1, 2003