WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. Maixueying Jokemine
Case No. D2010-2233
1. The Parties
The Complainant is Accor of Evry, France, represented by Dreyfus & associés, France.
The Respondent is Maixueying Jokemine of Guangzhou, the People’s Republic of China.
2. The Domain Name and Registrar
The disputed domain name <accorhotel.net> is registered with Xiamen eName Network Technology Corporation Limited dba eName Corp.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2010. On December 21, 2010, the Center transmitted by email to Xiamen eName Network Technology Corporation Limited dba eName Corp.a request for registrar verification in connection with the disputed domain name. On December 22, 2010, Xiamen eName Network Technology Corporation Limited dba eName Corp. 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” 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 the Respondent of the Complaint, and the proceedings commenced on January 5, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 25, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 27, 2011.
The Center appointed Rodrigo Azevedo as the sole panelist in this matter on February 10, 2011. 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 has provided hospitality services for more than 40 years and is one of the world leaders in the hotel business. Presently, the Complainant operates more than 4,000 hotels worldwide, including more than 90 only in China.
The Complainant and its related companies own numerous trademark registrations incorporating the word ACCOR in several countries.
The Complainant has also a strong presence on the Internet, operating mainly at "www.accorhotels.com" and "www.accor.com”.
The disputed domain name <accorhotel.net> was created on April 14, 2010.
When the Panel tried to access the disputed domain name there was no active web site.
5. Parties’ Contentions
The Complainant makes the following contentions:
(i) The disputed domain name is confusingly similar to the Complainant’s trademark. The disputed domain name <accorhotel.net> reproduces entirely the Complainant’s trademark ACCOR. The mere addition of the word "hotel" is not sufficient to distinguish the disputed domain name from the Complainant’s ACCOR trademark. The possibility of confusion is heightened when the generic word added by the Respondent is descriptive of the Complainant’s goods and services marketed in relation to the trademark. Finally, it has been well established that the mere addition of the gTLD “.net” is irrelevant.
(ii) The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the Complainant and has not been authorized by the Complainant to use and register any domain name incorporating the trademark ACCOR. The registration of several ACCOR trademarks preceded the registration of the disputed domain name <accorhotel.net> for years. The Respondent is not commonly known by the name “Accor” and did not demonstrate any use of the disputed domain name in connection with a bona fide offering of goods or services. If the Respondent had a right or legitimate interest in respect to the disputed domain name, it would not attempt to sell it to the Complainant.
(iii) The disputed domain name has been registered and is being used in bad faith. It is implausible that the Respondent was unaware of the Complainant when he registered the disputed domain name. Secondly, in many decisions the panel considered that the Complainant’s Accor hotels and ACCOR trademarks are widely-known worldwide. The offer of remuneration for the transfer of a disputed domain name also constitutes use in bad faith. It is likely that the Respondent registered the disputed domain name to prevent the Complainant from reflecting its trademark in the disputed domain name. Finally, the presence of the generic term “hotel” in the disputed domain name illustrates the Respondent’s bad faith since it refers to part of the Complainant’s activities.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant shall prove the following three elements:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) The respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel has no doubt that ACCOR is a trademark directly connected with the Complainant’s activities.
Exhibit 18 to the Complaint demonstrates registration of the ACCOR trademark in China and in several countries.
The trademark ACCOR is wholly encompassed within the disputed domain name, which also includes the generic term “hotel”.
In a previous UDRP decision, concerning the domain names <buy-xenical-000.biz> and <order-xenical-a.biz>, the panel stressed that “it is now well-established that the adoption of a trademark in its entirety as a domain name together with other descriptive material does not generally suffice to enable a respondent to overcome an allegation that the domain name is distinguishable from the Trademark in question” (F. Hoffmann-La Roche AG v. sysadmin admin, balata.com ltd., WIPO Case No. D2008-0954).
Considering that the Complainant operates in the hotel business, the Panel concludes that the addition of the term "hotel" even heightens the similarity between the disputed domain name and the Complainant’s trademark.
As a result, the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides some examples without limitation where a respondent can demonstrate a right or legitimate interest in a domain name by showing one of the following facts:
(i) Before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) The respondent has been commonly known by the domain name; or
(iii) The respondent is making a legitimate non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue.
Based on the Respondent's default and on the prima facie evidence in the Complaint, the Panel finds that the above circumstances are not present in this particular case and that the Respondent has no rights or legitimate interests in the disputed domain name.
The Panel notes that the present record provides no evidence to demonstrate the Respondent's intent to use or to make preparations to use the domain names in connection with a bona fide offering of goods or services. Indeed, the Complainant filed a screenshot of the web page that was published at the disputed domain name, where the disputed domain name was offered for sale.
The Complainant has not licensed or authorized the usage of its trademarks to the Respondent, and it does not appear from the present record that the Respondent is commonly known by the disputed domain name.
Consequently, the Panel is satisfied that the Complainant has proven the second element of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances in particular, but without limitation, shall be evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) The respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) The respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
When the disputed domain name was registered the Complainant’s trademark ACCOR was already highly recognized worldwide in the field of hospitality services. This circumstance, together with the use of the word "hotel" in the disputed domain name, is clear enough to refute any possibility of coincidence in its registration.
In registering and using the disputed domain name, the Respondent creates a likelihood of confusion with the Complainant’s trademark and deprives the Complainant from offering its services to prospective clients who are clearly looking for it.
Furthermore, the Complainant has shown previous use of the disputed domain name to basically post offers for sale, an intent that was also confirmed in the responses to the cease-and-desist letters sent by the Complainant, demanding transfer of the disputed domain name for valuable consideration in excess of the out-of-pocket expenses directly related to the domain name. This also characterizes bad faith within the meaning of paragraph 4(b)(i) of the Policy.
Finally, the present lack of active use of the disputed domain name does not help the Respondent. Previous UDRP decisions have shown that the mere passive holding of a domain name may characterize bad faith in some cases. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and Polaroid Corporation v. Jay Strommen, WIPO Case No. D2005-1005.
Accordingly, the Panel finds that the Complainant has proved that the disputed domain name was registered and is being used in bad faith, satisfying the third element 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 <accorhotel.net> be transferred to the Complainant.Rodrigo Azevedo
Dated: February 24, 2011