WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. Serdar Ceylan
Case No. D2011-2231
1. The Parties
The Complainant is Accor of Evry, France, represented by Dreyfus & associés, France.
The Respondent is Serdar Ceylan of Turkey.
2. The Domain Name and Registrar
The disputed domain name <novotelistanbul.com> is registered with Bizcn.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2011. On December 19, 2011, the Center transmitted by email to Bizcn.com, Inc. a request for registrar verification in connection with the disputed domain name. On December 20, 2011, Bizcn.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” 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 December 22, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 11, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 12, 2012.
The Center appointed Daniel Kraus as the sole panelist in this matter on January 26, 2012. 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 world leader in economic and mid-scale hotels as well as an important player in upscale and luxury hospitality services, in which it has been active for more than 40 years. It operates more than 4,200 hotels in 90 countries. The group includes hotel chains such as Novotel. The Complainant operates 9 hotels in Turkey, including 4 Novotel hotels. The Complainant has received a prize for its tourism services in 2010 which acknowledges its best practices in sustainable tourism.
The Complainant owns among others, the following domain names: <accorhotels.com>, <accor.com> and <novotel.com>. The group mainly communicates on the Internet via the websites at these domain names, where Internet users can easily and quickly find and book hotel rooms amongst other services.
The Complainant has become aware of the Respondent’s registration of the disputed domain name in 2008. The disputed domain name was inactive. Based on its trademark rights, the Complainant sent an email and registered cease and desist letter on March 5, 2008 to the Respondent, asking him to transfer the disputed domain name <novotelistanbul.com>. On April 29, 2008, after a reminder had been sent by email, the Respondent replied to the Complainant, stating that the disputed domain name was not used by him, but that he was ready to sell it. Whilst the Complainant replied to the Respondent repeating that this was in violation of its trademark, the Complainant received no reply to this latest communication dated May 6 and June 2, 2008.
Although the registrant’s name changed between July and September 2008, to become Serdar Ceylan, the email address remained the same. Based on the fact that the information available was inaccurate or unreliable, the Complainant tried, on April 17, 2009 to obtain cancellation of the disputed domain name by submitting a WhoIs Data Problem Report. This measure was not successful.
In June 2009, the registrant’s name changed again to the name of the previous registrant, Salih Zeki Salihoglu. At the date of filing of the Complaint, the registrant was again Serdar Ceylan.
5. Parties’ Contentions
The Complainant argues that it owns and operates several hotels under the trademark NOVOTEL, which, according to it, is a well-known trademark. The Complainant is in particular the owner of the international trademark registration n° 875041 NOVOTEL dated December 9, 2005 and covering services in class 43. In addition, the Complainant operates, among others, domain names reflecting its trademark, as mentioned above, including the domain name <novotel-istanbul.com>, registered on December 7, 2006.
According to the Complainant the disputed domain name <novotelistanbul.com> is identical to the Complainant’s trademark NOVOTEL. Additionally, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name as he is neither affiliated nor related with the Complainant in any way, or authorized to use and register the Complainant’s trademark or to seek registration of any domain name incorporating said trademarks. Furthermore, the Complainant contends that the Respondent has no prior rights or legitimate interests in the disputed domain name but only wanted to benefit from the reputation of the trademark NOVOTEL. Moreover, NOVOTEL having no meaning in Chinese or Turkish, the Respondent has no rights or legitimate interests with respect to the disputed domain name under paragraph 4(a)(ii) of the Policy.
Finally the Complainant argues that the Respondent registered the disputed domain name and is using it in bad faith.
For all these reasons, the Complainant requests that the disputed domain name be transferred to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name <novotelistanbul.com> is confusingly similar to the Complainant’s trademark NOVOTEL. Indeed, the disputed domain name reproduces the Complainant’s trademark in its entirety; this trademark has been considered by previous UDRP panels to be well-known in the field of hotels (Accor v. Nin Yang, WIPO Case No. DC2011-0004; Accor v. Jose Andres Buenfil Gomez, WIPO Case No. D2008-1248; Accor SA v. Peter Mason, WIPO Case No. D2008-0957; Accor v. Sergey Fomin, WIPO Case No. D2008-0706).
The incorporation of a trademark in its entirety may in some cases be sufficient to establish that the domain name is identical or confusingly similar to the complainant’s registered mark (Rapid Share AG, Christian Schmid v. invisibleregistration.com, domain admin, WIPO Case No. D2010-1059; Accor v. Everlasting Friendship Trust, WIPO Case No. D2005-0288).
The mere addition of the geographic term “Istanbul” is not sufficient to distinguish the disputed domain name from the Complainant’s NOVOTEL trademark, as it is still confusingly similar (Accor v. Vu Duy Truong, WIPO Case No. D2011-0093; Accor v. Le Don Youn, WIPO Case No. D2008-0705; Accor SA v. Jacoop.org, WIPO Case No. D2007-1257).
Moreover, a likelihood of confusion is given and could lead Internet users to think that the disputed domain name, in one way or another, is associated with the Complainant’s trademark because there is a Novotel hotel which is operated by the Complainant in Istanbul.
In order to be complete, it should also be mentioned here that the mere addition of the gTLD “.com” is irrelevant because the top level domain name is not a distinctive element whilst assessing the identity or confusing similarity between a trademark and a domain name (amongst others see Alstom v. Itete Peru SA, WIPO Case No. D2009-0877). As a result, the Panel considers the disputed domain name is identical or confusingly similar to the Complainant’s trademark NOVOTEL.
B. Rights or Legitimate Interests
As sufficiently shown by the Complainant, the Respondent has never been authorized to use or register the trademark NOVOTEL or to seek any registration of any domain name incorporating the said trademark. The Respondent further has no legitimate interests in the disputed domain name, noting that the NOVOTEL trademark preceded the registration of the disputed domain name <novotelistanbul.com> for several years.
In addition, the Respondent is not affiliated with the Complainant nor authorized or licensed to use the NOVOTEL trademark. No bona fide or legitimate use of the disputed domain name can be reasonably claimed (Lego Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2010-0138).
Finally, it seems that the term Novotel has no meaning in Turkish.
For all these reasons, the Panel is of the opinion that the Respondent has no rights or legitimate interests with respect to the disputed domain name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
In light of the reputation of the Complainant’s trademark NOVOTEL, it is difficult to imagine that the Respondent was not aware of the trademark when the disputed domain name was registered.
Where a domain name is so obviously connected with a well known trademark its very use by someone with no connection to the trademark suggests opportunistic bad faith (Lego Iuris AS v. Rainer Stotte, WIPO Case No. D2010-0494; Sanofi Aventis v. Nevis Domains LLC, WIPO Case No. D2006-0303).
In addition, the knowledge of a corresponding mark at the time of the domain name registration may also suggest bad faith (Caixa D’Estalvis i Pensions de Barcelona (“La Caixa”) v. Eric Adamand, WIPO Case No. D2006-464; Document Technologies Inc. v. International Electronic Communications Inc, WIPO Case No. D2000-0270). Had the Respondent been in good faith, a quick trademark search would have revealed to him the existence of the Complainant and of its trademark. (Lancôme Parfums et Beauté et Cie, L’Oréal v. 10 Selling, WIPO Case No. D2008-0226). Even without a trademark search but on a search engine such as Google would have shown that the Novotel name is widely used.
All the above, including the apparent sale proposal of the disputed domain name, suggests that the Respondent was perfectly aware of the existence of the NOVOTEL trademark but wanted to benefit in some way or another from its reputation.
As regards bad faith use of a domain name, even the passive holding of a domain name has been considered by previous UDRP Panels in some situations to correspond to a bad faith use: such can be the case if the complainant’s trademark has a strong reputation and is widely known; where the respondent has provided no evidence of any actual or contemplated good faith use by it of the domain name; where the respondent has taken active steps to conceal its true identity or has failed to correct false contact details (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Malayan Banking Berhard v. Beauty, Success and Truth International, WIPO Case No. D2008-1393)
In the present case, all these conditions are fulfilled. By failing to respond, the Respondent has provided no evidence of good faith use.
For all these reasons, including the fact that the Respondent apparently tried to sell the disputed domain name to the Complainant, the Respondent’s behaviour does not correspond to a use in good faith. Consequently, the Panel finds that it has been sufficiently established that the Respondent registered and used the disputed domain name in bad faith in accordance with paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <novotelistanbul.com> be transferred to the Complainant.
Dated: February 20, 2012