WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. Ramesh S
Case No. D2019-0842
1. The Parties
The Complainant is Accor of France, represented by Dreyfus & associés, France.
The Respondent is Ramesh S of India, self-represented.
2. The Domain Name and Registrar
The disputed domain name <aaccordhotels.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2019. On April 12, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 15, 2019, 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 April 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 7, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 8, 2019. The Respondent sent an email communication to the Center on May 9, 2019 and the Center acknowledged receipt on the same day.
The Center appointed Jon Lang as the sole panelist in this matter on May 13, 2019. 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 domain name in dispute <aaccordhotels.com> (hereafter the Domain Name) was registered on November 14, 2018 by the Respondent.
The Complainant is a leading global hotel operator. Its main website is at “www.accorhotels.com” (registered on April 30, 1998) but it also uses <accor.com> (registered on February 23, 1998) to promote its services.
Founded in 1967, the Complainant operates more than 4,500 hotels in 109 countries worldwide under notable hotel chains such as Fairmont, Raffles, Swissôtel, Sofitel, Pullman, Novotel, Grand Mercure, and Ibis. In India, the Complainant has around 50 hotels including Grand Mercure, Pullman, and Swissotel.
The Complainant owns and operates several hotels under the trademarks ACCOR and ACCORHOTELS and is the owner of a number of trademark registrations including Indian Trademark ACCORHOTELS No. 2250198, filed on December 15, 2011 and International Trademark ACCOR No. 742032, registered on August 25, 2000.
5. Parties’ Contentions
The following is a summary of the Complainant’s key contentions.
The Domain Name once resolved to a page displaying information about the opening of the Complainant’s hotel in Bangalore and which imitated the Complainant’s official website. The Complainant was concerned there might be a risk of phishing as an email server had been configured for the Domain Name. In November 19, 2018, the Complainant sent a notification to the registrar to request that the Domain Name be deactivated, but the request was declined. It also transmitted a notification to the email service provider requesting deactivation of the email server, but to no avail. Following these notifications, the Complainant noticed a change and the Domain Name now resolves to a webpage entitled “Aaccord” offering services in the field of hotels, including an online booking system.
The Complainant has acquired considerable reputation and goodwill worldwide.
The domain name is confusingly similar to a trademark or service mark in which the Complainant has rights
The Domain Name imitates the Complainant’s trademarks ACCOR and ACCORHOTELS which have been considered to be “well-known” or “famous” by previous UDRP Panels. The Domain Name incorporates the mark ACCORHOTELS, merely adding the letters “a” and “d” (at the beginning and end of ACCOR), which does not modify its overall impression of being at least highly similar to the Complainant’s trademarks (consisting of the same two-word element in the same order), and being phonetically the same.
The Respondent has embarked on the practice of “typosquatting”.
The extension “.com” is not to be taken into consideration when examining the identity or similarity between the Complainant’s trademarks and the Domain Name.
By registering the Domain Name, the Respondent has created a likelihood of confusion with the Complainant’s trademark which could mislead Internet users into thinking that it (the Domain Name) is, in some way, controlled by or associated with the Complainant.
In summary, the Domain Name is confusingly similar to the trademarks ACCOR and ACCORHOTELS in which the Complainant has rights.
The Respondent has no rights or legitimate interests in respect of the domain name
The Respondent is neither affiliated with, nor authorised by, the Complainant to use and register its trademarks, or to seek registration of any domain name incorporating such marks.
The Respondent has no prior rights or legitimate interest in the Domain Name.
The registration of the ACCOR and ACCORHOTELS trademarks preceded registration of the Domain Name.
The Respondent is not commonly known by the Domain Name or the names ACCOR and/or ACCORHOTELS.
The Respondent cannot assert that, before any notice of this dispute, he was using, or had made 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. By using the Domain Dame, which is confusingly similar to the Complainant's trademarks, to offer services in the exact same field of endeavour as the Complainant, i.e., hotel services, the Respondent is intentionally seeking to exploit user confusion by diverting Internet users away from the Complainant's site to his website for the latter's own benefit. Such use, which at its heart relies on exploiting user confusion, cannot constitute bona fide use.
Reference is made to Section 2.12 of the WIPO Overview 3.0., which notes that panels have generally declined to find that a respondent has rights or legitimate interests in a domain name on the basis of a corresponding trademark registration, where the overall circumstances demonstrate that such trademark was obtained primarily to circumvent the application of the UDRP or otherwise prevent the complainant’s exercise of its rights.
The Respondent’s use of the Domain Name cannot be considered “fair”, as it falsely suggests affiliation with the Complainant such that Internet users, particularly the Complainant’s customers, are likely to believe that the Domain Name will direct them to a website related to the Complainant’s hotels.
An email server has been configured for the Domain Name and thus there might be a risk that the Respondent has, or is intending to, engage in a phishing scheme.
Given the Complainant’s goodwill and renown worldwide, and the confusingly similar nature of the Domain Name, it is not possible to conceive of a plausible situation in which the Respondent could legitimately use it.
The Respondent has no rights or legitimate interests in respect to the Domain Name.
The domain name was registered and is being used in bad faith
Registration in bad faith
Bad faith can be found where a respondent “knew or should have known” of the complainant’s trademark rights, but nevertheless registered a domain name in which he had no rights or legitimate interest. It is implausible that the Respondent was unaware of the Complainant when he registered the Domain Name, given that ACCOR and ACCORHOTELS are well-known trademarks throughout the world. A simple search via Google or any other search engine using the keyword “AACCORDHOTELS” demonstrates that all initial results relate to the Complainant’s services or news.
The Complainant’s trademark rights predate registration of the Domain Name. Knowledge of a complainant’s intellectual property rights at the time of registration of a domain name can demonstrate bad faith registration. By virtue of Section 2 of the ICANN Policy, a registrant represents and warrants that, to his knowledge, the registration of the domain name will not infringe the rights of any third party, and thus it is a registrant’s duty to verify that the registration will not so infringe. A quick trademark search of ACCOR and ACCORHOTELS would have revealed the existence of the Complainant and its trademarks, and the Respondent’s failure to do so is a contributing factor to its bad faith.
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.
Given the reputation of the Complainant’s trademarks, registration in bad faith can be inferred.
Typosquatting is in itself evidence of bad faith
In summary, it is inconceivable that the Respondent did not have the Complainant’s trademarks and activities in mind at the time of registration of the Domain Name. There is simply no other reason for using the Complainant’s trademarks in the Domain Name, except to unfairly take advantage of the Complainant’s rights (as demonstrated by the use to which the Domain Name has been put).
The Respondent registered the Domain Name in bad faith.
Use in bad faith
The Domain Name resolves to a webpage entitled “Aaccord” offering services in the field of hotels, including an online booking system. The Respondent is thus using the Domain Name to intentionally attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the services offered on the Respondent’s website.
Given the reputation of the Complainant’s trademarks, there cannot be any actual or contemplated good faith use of the Domain Name.
An additional strong indication of bad faith is the fact that an email server has been configured for the Domain Name and thus there is a risk that the Respondent is intending to or has engaged in a phishing scheme.
Finally, given the Complainant’s goodwill and renown worldwide and the confusingly similar nature of the Domain Name, no good faith use by the Respondent or a third party is conceivable as any use would invariably result in misleading diversion and the unfair taking advantage of the Complainant’s rights.
The Domain Name is being used in bad faith.
The Respondent did not a file a Response, but a day after receiving notification of default (in filing a Response by the due date), he sent (on May 9, 2019) the following message to the Center:
“I can understand your case, we are web development company we are nothing to do with any of clients case, we are requesting to you kindly Contact with following address, AACORD HOTELS
#27, BHBCS Layout, Opp Gopalan Mall, Bannerghatta Road, Bangalore, India
Thanks & Regards
Xeper Technologies Pvt Ltd”
6. Discussion and Findings
Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is: (i) identical or confusingly similar to a trademark or service mark in which a complainant has rights; and (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith. A complainant must prove each of these three elements to succeed.
A. Identical or Confusingly Similar
The Complainant clearly has rights in its ACCOR and ACCORHOTELS trademarks.
Ignoring the generic Top-Level Domain “.com” (as the Panel may do for comparison purposes), the Domain Name comprises the Complainant’s ACCORHOTELS mark, merely adding the letters “a” and “d” (at the beginning and end of ACCOR).
Application of the confusing similarity test under the UDRP typically involves a comparison, on a visual or aural level, between the trademark and the domain name to determine whether the trademark is recognizable as such within the domain name. The addition of common, dictionary, descriptive, or negative terms are usually regarded as insufficient to prevent confusing similarity.
The marks, ACCOR and ACCORHOTELS are clearly recognisable within the Domain Name. The addition of the letters “a” and “d” at the beginning and end of ACCOR do nothing to disguise the marks. Moreover, the mark ACCORHOTELS and Domain Name are (ignoring the generic Top-Level Domain “.com) phonetically identical.
The impression created by the Domain Name may well give rise to the possibility that Internet users would think that the owner of the Domain Name is in fact the owner of the ACCOR and ACCORHOTELS trademarks, or that there is some form of association between the Respondent and the Complainant. The Panel thus finds that the Domain Name is confusingly similar to the ACCOR and ACCORHOTELS marks for the purposes of the Policy and thus paragraph 4(a)(i) of the Policy has been established.
B. Rights or Legitimate Interests
By its allegations, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name – the Complainant has around 50 hotels in India, registered trademarks in India and elsewhere that pre-date the Domain Name and is a major name in the hotel sector. It is unlikely that the Respondent (or the “client” making use of the Domain Name given that such use is in connection with hotel services), would not have known of the Complainant and its marks at the time of registration of the Domain Name. Accordingly, the burden of production shifts to the Respondent to come forward with arguments or evidence demonstrating that it does in fact have such rights or legitimate interests. The Respondent has not done so and accordingly, the Panel is entitled to find, given the prima facie case made out by the Complainant, that the Respondent indeed lacks rights or legitimate interests in the Domain Name. Despite the lack of any answer to the Complaint however, the Panel is entitled to consider whether there would be anything inappropriate in such a finding.
A respondent can show it has rights to or legitimate interests in a domain name in various ways even where, as is the case here, it is not licensed by or affiliated with a complainant. For instance, it can show that it has been commonly known by the domain name or that it 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 or service mark at issue. Here, however, the Respondent is not known by the Domain Name. He in fact says that “…we are web development company we are nothing to do with any of clients case…”. The “client” appears to be in the hotel sector using the name “Aaccord” or “Hotel Aaccord”. The Domain Name clearly carries a high risk of implied affiliation with the Complainant and without explanation for its choice of Domain Name, it is difficult to treat the “client’s” use as legitimate non-commercial or fair use. The fact that there seems to be some use of “Aaccord” or “Hotel Aaccord” in connection with a trade (removing any suggestion that such use could be noncommercial), does not automatically legitimise a choice of corresponding domain name if circumstances suggest that such use could have been designed to circumvent the application of the UDRP or otherwise prevent the Complainant’s exercise of its rights. Given the allegation that the Domain Name once resolved to a page displaying information about the opening of the Complainant’s hotel in Bangalore which imitated the Complainant’s official website, an allegation that has not been answered, the Respondent (or its “client”) is not entitled to the benefit of the doubt in this regard. The Panel does not accept that there is legitimate noncommercial or fair use in this case. In any event, any noncommercial or fair use must be without intent to mislead but it is possible (in the absence of any alternative explanation), that the very purpose in the Respondent choosing the Domain Name it did was to deliberately create a false impression of association with the Complainant.
A respondent can also show that it is using a domain name in connection with a bona fide offering of goods or services. However, it would be difficult to accept, without clear justification, that a website to which a domain name resolves, which likely takes advantage of the renown of the trademark(s) to which it is confusingly similar (such that Internet users may well actually be misled), could amount to a bona fide offering.
There is no evidence before this Panel that the Respondent has rights or legitimate interests in the Domain Name. The Respondent (or his “client”) has not come forward with a formal Response or taken any other meaningful action to address the Complaint. The contentions of the Complainant by which it has made out a prima facie case that the Respondent has no rights or legitimate interests, have not been contradicted or challenged, or cast into doubt by the brief analysis set out above. Accordingly, the Panel finds that the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
One way a complainant may demonstrate bad faith registration and use is to show that a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it.
It is extremely likely that the Respondent or the Respondent’s “client” was aware of the Complainant’s ACCOR and ACCORHOTELS marks at the time of registration. The Domain name is being used in connection with the very same services provided by the Complainant. The purpose behind the registration appears to have been to attract Internet users to the Respondent’s website for commercial gain using a domain name confusingly similar to the Complainant’s marks. In other words, precisely the circumstances envisaged above.
The unanswered allegation that the Domain Name once resolved to a page displaying information about the opening of the Complainant’s hotel in Bangalore which imitated the Complainant’s official website, far from detracts from the Complainant’s assertion of bad faith.
In all the circumstances, the Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the Domain Name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <aaccordhotels.com> be transferred to the Complainant.
Date: May 27, 2019