WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. Cybernet Systech Private Limited
Case No. D2018-1561
1. The Parties
The Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & Associés, France.
The Respondent is Cybernet Systech Private Limited of Mumbai, Maharashtra, India.
2. The Domain Name and Registrar
The disputed domain name <accorhotels-opinon.com> ("Domain Name") is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 11, 2018. On July 11, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 12, 2018, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 13, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 2, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 3, 2018.
The Center appointed Ada L. Redondo Aguilera as the sole panelist in this matter on August 7, 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
According to the Complainant, it is the world leader in economic and mid-scale hotels, and a major player in upscale and luxury hospitality services. For more than 45 years, it has provided customers with expertise acquired in this core business.
According to what the Complainant established, it operates more than 4,000 hotels in 95 countries worldwide and around 597, 000 rooms, from economy to upscale. The group includes notable hotel chains such as Pullman, Novotel, Mercure and Ibis. The Complainant's brands offer hotel stays tailored to the specific needs of each business and leisure customer and are recognized and appreciated around the world for their service quality.
ACCOR as a trademark is present around the world including in the region of Asia. Only in India, the Complainant counts to 62 hotels.
The Complainant holds numerous trademark registrations that include:
- European Union trademark ACCORHOTELS No. 010248466 registered on March 20, 2012 and covering services in classes 35, 39 and 43;
- Indian trademark ACCORHOTELS.COM No. 2244245 registered after its application on December 5, 2011, covering services in classes 39 and 43;
- Indian trademark ACCOR No. 2285337 registered after its application on February 17, 2012, covering services in classes 35 and 43;
- International trademark ACCORHOTELS No. 1280325, registered on July 13, 2015, covering services in classes 35, 36, 39, 43, including India.
In addition, the Complainant has several domain names reflecting its trademarks to promote its services, including <accor.com> registered on February 23, 1998 and <accorhotels.com> registered on April 30, 1998;
According to the Registrar's WhoIs data base, the Domain Name <accorhotels-opinon.com> was created on October 31, 2017. According to the evidence provided by the Complainant, the Domain Name resolves to a parkinf page with pay-per-click links related to hotels.
5. Parties' Contentions
The Complainant has asserted that the three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name are present in this case.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which the Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(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 Complainant provided enough evidence of its rights through the registration and use of the ACCOR and ACCORHOTELS trademarks in many countries of the world, included India, where is presumably located the Respondent.
The Domain Name incorporates the trademarks ACCOR and ACCORHOTELS with the adjunction of the misspelled generic term "opinon" (= "opinion"). This generic term is insufficient to avoid a finding of confusing similarity. The Domain Name incorporates the Complainant's trademarks in its entirety. This is enough to establish confusing similarity as other UDRP panels have declared before, for example, Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
The generic top-level domain ("gTLD") ".com" is also disregarded, as gTLDs typically do not form part of the comparison because they are required for technical purposes, this has previously recognized by other UDRP panels, as for example in Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275.
For all the above-mentioned reasons, the Panel finds that the Domain Name is confusingly similar to the ACCOR and ACCORHOTELS trademarks that belong to the Complainant, therefore the Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, the Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Paragraph 4(a)(ii) of the Policy requires the Complainant to establish that the Respondent has no rights or legitimate interests in the Domain Name. The consensus view among UDRP panels is that where a complainant makes out a prima facie case that the Respondent lacks rights or legitimate interests, the burden of production on this element shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name.. See section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")., In this case the Respondent did not answer therefore did not rebut Complainant's prima facie case regarding the lack of rights or legitimate interests.
The Complainant declared that it is not affiliated or associated with the Respondent in any way and that it has not authorized or given any license to the Respondent to use the trademarks ACCOR or ACCORHOTELS or include it in the Domain Name. Also, the Complainant established that the Respondent is not commonly known by the domain name nor the names: ACCOR or ACCORHOTELS. Moreover, the use of the disputed domain name in connection with a website displaying sponsored links is not considered in this case a bona fide offering of goods or services.
The Respondent has not rebutted these arguments or shown evidence of its rights or legitimate interests in the disputed domain name.
For all the above-mentioned reasons the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Therefore, the Panel resolved that the second element of the Policy is also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant has to establish that the Domain Name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
"(i) circumstances indicating that [the respondent has] registered or has 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 [the respondent's] documented out-of-pocket costs directly related to the domain name; or
(ii) [the respondent has] registered the domain name 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 disrupting the business or competitor; or
(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent's] website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [the respondent's] website or location or of a product or service on [the respondent's] website or location."
The Complainant's ACCOR and ACCORHOTELS trademarks are well-known for hotels and they are not a common word. In this case, the Respondent should have known about the Complainant's rights because the Complainant's mark had significant reputation when the Domain Name was registered and the Domain Name reproduces the Complainant's trademarks in its entirety. Furthermore, such knowledge is readily obtainable through a simple browser search due to the Complainant's wide use of ACCORHOTELS mark on the Internet, namely "www.accorhotels.com" and "www.accorhotels.group". See other UDRP cases, regarding the acknowledge by the Respondent of the trademarks before registering or using the domain names that correspond to a well-known trademarks Caesars World, Inc. v. Forum LLC, WIPO Case No. D2005-0517 and Compart AG v. Compart.com / Vertical Axis Inc., WIPO Case No. D2009-0462. This also in view of the nature of the Complainant's services, namely hotel services for which online booking is widely used.
About the use of the disputed domain name in bad faith, the Panel considers the following factors: (i) the reputation of the Complainant's mark, which has been widely recognized included by other UDRP panels; see Accor v. Domains By Proxy, LLC / Abdulrahman Almarri, WIPO Case No. D2015-0777; Accor v. Domain Whois Protection Service Whois Agent / lijiewei, WIPO Case No. D2014-1482 and Accor and SoLuxury HMC v. "m on", WIPO Case No. D2012-2262, (ii) the failure of the Respondent to submit a response, (iii) the corresponding website was redirecting to similar services to the ones related to the trademark ACCOR and ACCORHOTELS (as other UDRP panels have previously considered that this behavior was an additional proof of bad faith, Hardee's Food Systems, Inc. v. Whois Privacy Protection Service, Inc. / ICS Inc, WIPO Case No. D2012-1696, DaimlerChrysler Corporation and DaimlerChrysler Services North America LLC v. LaPorte Holdings, WIPO Case No. D2005-0070), and iv) the nature of the Domain Name consisting of the trademark ACCORHOTELS with the misspelled term "opinon".
About the offer to sell the Domain Name for USD 145 made by the Respondent to the Complainant. The Panel considers that this is additional evidence of bad faith in registration and use of the Domain Name. In this case, when the Respondent sets a price to release the domain name that incorporates a well-known trademark. The Panel considers that the offer of payment, even inexpensive, does not seem to reflect the real costs of the Domain Name. It has been well documented, that offering to sell a domain name that incorporates a well-known trademark, in a price that is out-of-pocket expenses directly related to the Domain Name is an evidence of bad faith in registration and use, see the following cases: The Massachusetts Medical Society v. Michael Karle, WIPO Case No. D2000-0282 and World Wrestling Federation Entertainment, Inc v. Michael Bosman, WIPO Case No. D1999-0001.
Consequently, the Panel finds that the Respondent has registered and used the Domain Name in bad faith in accordance with paragraph 4(a)(iii) of the Policy, therefore the Complainant has complied with Policy paragraph 4(a)(iii).
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 <accorhotels-opinon.com> be transferred to the Complainant.
Ada L. Redondo Aguilera
Date: August 20, 2018