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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Accor v. See PrivacyGuardian.org Domain Administrator / Jimmy M. Nunez

Case No. D2017-2517

1. The Parties

The Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.

The Respondent is See PrivacyGuardian.org, Domain Administrator of Phoenix, Arizona, United States of America (“United States”) / Jimmy M. Nunez of Christiansburg, Ohio, United States.

2. The Domain Name and Registrar

The disputed domain name <novotellotus.net> is registered with NameSilo, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2017. On December 19, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 19, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 27, 2017 providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed a first amended Complaint on December 29, 2017. The Complainant filed a second amended Complaint on December 29, 2017.

The Center verified that the Complaint together with the first and second amended Complaints 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 26, 2018.

The Center appointed Tobias Zuberbühler as the sole panelist in this matter on February 27, 2018. 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 French multinational hotel group, which operates more than 4,100 hotels under different brands in 95 countries. The Complainant is the proprietor of several trademark registrations for the term NOVOTEL in relation to hotel and restaurant services, including International Trademark No. 542032 (registered on July 26, 1989), United States Trademark No. 1803936 (registered on November 9, 1993), and European Union Trademark No. 010429082 (registered on April 20, 2012). Additionally, the Complainant owns a number of domain names reflecting its NOVOTEL trademark, such as <novotel.com> and <novotel.us>. There are presently 485 NOVOTEL hotels within the Complainant’s group, located in 58 countries, including the United States where the Respondent is based.

The Respondent Jimmy M. Nunez is a private person residing in the United States. The Complaint is also directed against See PrivacyGuardian.org Domain Administrator, a privacy protection service used by the Respondent in connection with the disputed domain name.

The disputed domain name, <novotellotus.net>, was registered on June 15, 2017. It currently resolves to a website which contains information about and links for purchasing penis pumps, body building supplements, steroid drugs and weight loss products.

5. Parties’ Contentions

A. Complainant

In summary, the Complainant contends the following:

The disputed domain name is confusingly similar to the Complainant’s well-known NOVOTEL trademark, as it reproduces this trademark in its entirety and links it to the generic term “lotus”. The addition of the generic term only increases the likelihood of confusion with the Complainant’s hotel chain, since “lotus” is a popular name for hotels.

The Respondent has no rights or legitimate interests in respect of the disputed domain name, since he is not in any way affiliated with the Complainant and has never been authorized by the Complainant to use its NOVOTEL trademark or to seek registration of any domain name incorporating this trademark. The Respondent is not known by the disputed domain name and cannot claim prior rights, because the NOVOTEL registered trademark precedes the registration of the disputed domain name by decades. The Respondent is using the disputed domain name incorporating the Complainant’s trademark in order to divert Internet consumers to an unrelated website, with intent for commercial gain. This neither constitutes a fair or legitimate noncommercial use nor any bona fide offering of goods and services.

The disputed domain name was registered and is being used in bad faith. Since the Complainant and its NOVOTEL trademark are well-known throughout the world, it is implausible that the Respondent was unaware of the Complainant and its rights when registering the disputed domain name. As the registrant of the disputed domain name, it was the Respondent’s duty to verify upon registration that the disputed domain name would not infringe the rights of any third party. A quick trademark search or even a simple Google search would have been enough to reveal to the Respondent the existence of the Complainant and its rights in the NOVOTEL trademark.

The Respondent is attempting to capitalize on the Complainant’s fame, by creating a risk of confusion with the Complainant’s trademark and attracting Internet users to his website for commercial gain. The content of the website associated with the disputed domain name is highly damaging for the reputation of the Complainant, since Internet users might be misled to believe that such content is endorsed by the Complainant. Furthermore, since an email server has been configured on the disputed domain name, there is a possibility that the Respondent is engaged in a phishing scheme, passing himself off as the Complainant and aiming to steal valuable information from Internet users.

A further indication of the Respondent’s bad faith is the fact that he used a privacy shield to conceal his identity.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has shown that it has rights in the NOVOTEL trademark. Previous UDRP panels have recognized that the NOVOTEL trademark is well-known throughout the world (see, e.g., Accor v. null, WIPO Case No. 2016-1160; Accor v. Adam Smith, WIPO Case No. D2016-0015; Accor v. WHOIStrustee.com Limited / Domain Administrator, Beyond the Dot LTD, WIPO Case No. D2015-0279).

The NOVOTEL trademark consists of a made-up word, associated in the minds of consumers all over the world with the Complainant’s hotel and restaurant services. The disputed domain name replicates the NOVOTEL trademark in its entirety and couples it with the generic word “lotus”. Despite the additional word, the NOVOTEL trademark stands out and dominates the disputed domain name. For this reason, the Panel concludes that the disputed domain name is confusingly similar with the Complainant’s trademark.

Therefore, the Complainant has met the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has made out a strong prima facie case that the Respondent lacks any rights or legitimate interests in the disputed domain name. The Complainant’s arguments remain unrebutted by the Respondent, who has chosen not to respond to the Complaint.

Based on the Complainant’s credible contentions outlined above, the Panel finds that the requirements of paragraph 4(a)(ii) of the Policy are also met.

C. Registered and Used in Bad Faith

Given the Complainant’s worldwide reputation and the fact that its trademark registrations precede the registration of the disputed domain name by many years, the Panel finds that the Respondent knew or should have known about the Complainant’s rights in the NOVOTEL trademark at the time of registration, which indicates his bad faith.

The Respondent uses the disputed domain name, which incorporates and is confusingly similar to the Complainant’s NOVOTEL trademark, to operate a website which advertises steroids and penis enlargement devices. Furthermore, there are some indications that the disputed domain name might be used in relation with a phishing scheme. In the Panel’s view, this shows the Respondent’s intention to misleadingly divert consumers to his website for commercial gain and to tarnish the Complainant’s trademark. This constitutes bad faith within the meaning of paragraph 4(b)(iv) of the Policy.

Thus, the Complainant has also met the requirements of paragraph 4(a)(iii) of the Policy.

7. Decision

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 <novotellotus.net> be transferred to the Complainant.

Tobias Zuberbühler
Sole Panelist
Date: March 12, 2018

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