WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. Valery Yimga, Avy Media Limited
Case No. D2018-1733
1. The Parties
The Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.
The Respondent is Valery Yimga, Avy Media Limited of Paris, France.
2. The Domain Names and Registrar
The disputed domain names <accordeal.com> and <accordeals.com> are registered with Wild West Domains, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 31, 2018. On July 31, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 1, 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 of the registrant.
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 August 6, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 26, 2018. The Center received emails from the Respondent requesting an extension to file a Response on August 22, 2018 and August 23, 2018. On August 24, 2018, the Center confirmed that the Response due date was extended to August 30, 2018, in accordance with paragraph 5(b) of the Rules. The Respondent did not submit any formal response. On August 31, 2018, the Center notified the Parties that the Center will proceed to Panel Appointment.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on September 19, 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 world leader in economic and mid-scale hotels and a major player in upscale and luxury hospitality services, operating more than 4,000 hotels in 92 countries, with a capacity of about 570,000 rooms.
The Complainant is the registered owner of several trademark registrations containing the term “accor”, including French Trademark Registration for ACCOR, No. 1237864 registered on May 13, 1983; International Trademark Registration for ACCOR No. 727696 registered on December 28, 1999 and European Union Trademark Registration for ACCOR No. 010254506 registered on December 16, 2012 (together referred to as: the “Marks”).
The Complainant carries on its business in large part by online sales, including in France, where the Respondent appears to be located.
The Complainant is the owner of numerous domain names, inter alia <accor.com> (registered in February 1998) and <accorhotels.com> (registered in April 1998), which resolve to its official website.
The disputed domain names were registered on March 12, 2017 and resolve to a parking page displaying pay-per-click links.
5. Parties’ Contentions
(i) The Complainant submits that the disputed domain names reproduce the Marks, in which the Complainant has rights, and are confusingly similar to the Marks insofar as the disputed domain names contain the distinctive element “accor”, in its entirety. The Complainant also asserts that the addition of the descriptive terms “deal” or “deals” does not serve to distinguish the disputed domain names from the Marks.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain names. Furthermore, the Complainant contends that it never licensed the Respondent to use the Marks in any manner, or consented to such use. The Complainant also asserts that the Respondent never had any business connection or affiliation with the Complainant.
(iii) The Complainant submits that the Respondent has registered and is using the disputed domain names in bad faith. The Complainant alleges that it is not by coincidence that the Respondent chose to register the disputed domain names.
(iv) The Complainant submits that the pay-per-click links are likely to generate revenues and that by misleadingly diverting consumers for his own commercial gain, the Respondent is using the disputed domain names in bad faith.
(v) The Complainant requests that the disputed domain names be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions. By two emails received by the Center on August 22 and 23, 2018, the Respondent merely requested more information on the case and an extension of time to study the case.
6. Discussion and Findings
6.1. Procedural Aspects
As aforementioned, no Response was received from the Respondent.
Under the Rules, paragraphs 5(f) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain names have been met, even in the event of a default.
Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain names, such as making legitimate noncommercial or fair use of the disputed domain names.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.
6.2. Requirements of Paragraph 4(a) of the Policy
A. Identical or Confusingly Similar
In comparing the Marks with the disputed domain names, it is evident that the latter consists solely of the Marks, followed by the descriptive term “deal” or “deals”, and by the generic Top-Level Domain (“gTLD”) “.com”.
The addition of descriptive terms does not typically serve to distinguish a domain name from a registered mark. See Banconsumer Service, Inc. v. Mary Langthorne, Financial Advisor, WIPO Case No. D2001-1367; Royal Bank of Canada v. RBC Bank, WIPO Case No. D2002-0672; and Allianz AG v. Marian Dinu, WIPO Case No. D2006-0318.
It is also well established that any gTLD, including, as is the case here, the gTLD “.com”, does not generally affect the assessment of a domain name for the purpose of determining identity or confusing similarity.
The Panel finds that the disputed domain names are confusingly similar to the Marks, which they incorporate entirely.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of a respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing, as the Panel believes the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
As previously noted, the Respondent offered no reason for selecting the disputed domain names. There is no evidence that the Respondent is commonly known by the disputed domain names or makes a legitimate noncommercial or fair use of the disputed domain names.
The web page associated with the disputed domain names displays pay-per-click links.
No information is provided on what rights or legitimate interests the Respondent may have in the disputed domain names.
To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no business connection or affiliation with the Complainant and (ii) received no license or consent from the Complainant to register or use the disputed domain names.
In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain names.
C. Registered and Used in Bad Faith
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain names confusingly similar to the Marks.
It is established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke, WIPO Case No. D2001-0775.
A number of previous UDRP panels have considered the Marks as well-known trademarks (see Accor v. DreamHost, Long Giang, WIPO Case No. D2014-0196; Accor and SoLuxury HMC v. “m on”, WIPO Case No. D2012-2262; Accor and SoLuxury HMC v. Fundacion Private Whois, WIPO Case No. D2012-1654; Accor v. Mao Jian Ting, WIPO Case No. D2012-0189; Accor v. Domainjet, Inc., WIPO Case No. D2012-0038; Accor v. Huajicani Hujiancai, WIPO Case No. D2014-0189; and Accor v. Reap Usd, WIPO Case No. D2016-0177).
In this case, given the location of the Respondent in France where the Complainant was founded 45 years ago and is headquartered, the Panel finds that it is close to impossible that the Respondent chose to register the disputed domain names randomly with no knowledge of the Marks. See Barney’s Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384 citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092.
In addition, the Panel notes that many UDRP panels have held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148), considering the specificity of the activity.
Moreover, the Panel cannot find any actual or contemplated good faith use of the disputed domain names, as their use invariably results in misleading diversion and taking unfair advantage of the Complainant’s rights. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
In this case, the disputed domain names resolve to a page displaying pay-per-click links. This supports the finding that the Respondent is using in bad faith the disputed domain names, for commercial gain.
Finally, some UDRP panels have held that in certain circumstances, registrants of domain names have an affirmative duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.
The Panel concludes in the light of all these circumstances that the Respondent’s registration and use of the disputed domain names constitutes bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
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 names <accordeal.com> and <accordeals.com> be transferred to the Complainant.
Date: October 3, 2018