WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. c/o Whoisproxy.com / Domain Admin, High Tech Investments Ltd
Case No. D2019-0984
1. The Parties
The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is c/o Whoisproxy.com, United States of America (“United States”) / Domain Admin, High Tech Investments Ltd, Seychelles.
2. The Domain Name and Registrar
The disputed domain name <com-accorhotels.com> (“Domain Name”) is registered with Key-Systems GmbH (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2019. On April 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 2, 2019, 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 May 2, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 6, 2019.
The Center verified that the Complaint, together with the amended 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 May 7, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 27, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 28, 2019.
The Center appointed Willem J. H. Leppink as the sole panelist in this matter on June 3, 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 following facts are undisputed.
The Complainant is a well-known leading global hotel operator and involved in budget, mid-scale hotels, as well as upscale and luxury hospitality services. Its main website can be found at “www.accorhotels.com”. It was founded in 1967. The Complainant (including its affiliated companies) operates more than 4,800 hotels in 100 countries worldwide. Complainant’s group includes hotel chains such as Fairmont, Raffles, Swissôtel, Sofitel, Pullman, Novotel, Grand Mercure, and Ibis.
The Complainant owns various trademark registrations worldwide for ACCORHOTELS and ACCOR, including the European Union Trademark ACCORHOTELS with registration number 010248466, filed on September 8, 2011, registered on March 20, 2012, and covering services in classes 35, 39, and 43; as well as the International Trademark registration ACCOR, with registration number 742032, registered on August 25, 2000, designating several countries and covering services in class 38. These trademark registrations will be referred to as the “Trademark”.
The Domain Name was registered on May 17, 2013.
On April 3, 2019, the Domain Name resolved to a parking page with pay-per-click links related to hotels (“Website”). On the same date, the Complainant sent a notification to the webhost by email relying on its trademark rights, in which it requested to deactivate all services related to the Domain Name. The webhost replied to the Complainant indicating that the Domain Name has been blocked and after than the Complainant noticed that the Domain Name started to resolve towards an inactive page. A search carried out by the Complainant revealed that an email server has been configured in relation to the Domain Name.
5. Parties’ Contentions
Insofar as relevant, the Complainant contends the following.
The Domain Name reproduces entirely the Trademark. Thus, the Domain Name is confusingly similar to the Trademark. The addition of the term “com” connected by a hyphen is insufficient to avoid any likelihood of confusion.
The Respondent is not affiliated with the Complainant in any way and has not been authorized by the Complainant to use or register its Trademark or to seek registration of any domain name incorporating the Trademark. Moreover, the Respondent has no prior rights or legitimate interest in the Domain Name. The registration of Trademark preceded the registration of the Domain Name for years. The Respondent is not commonly known by the Domain Name or the names “Accor” and “Accorhotels”. There is simply no evidence that the Respondent may be commonly known by the name “Accor” or “Accorhotels”.
The Respondent cannot assert that, before any notice of this dispute, it 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. The Domain Name is so confusingly similar to the Complainant’s well-known Trademark that the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the Domain Name. The Respondent has not made and is not making a legitimate noncommercial or fair use of the Domain Name and has not used the Domain Name in connection with a bona fide offering of goods or services. Initially, the Domain Name resolved towards a parking page with pay-per click links related to hotel services.
The Domain Name is so confusingly similar to the Trademark that the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the Domain Name. The Respondent is taking unfair advantage of the Trademark. The Respondent was capitalizing on the reputation and goodwill of the Trademark by misleadingly diverting Internet users to the Website. Internet users are likely to believe that the Domain Name is endorsed by the Complainant. Given the Complainant’s goodwill and renown worldwide, and the nature of the Domain Name, it is not possible to conceive a plausible circumstance in which the Respondent could legitimately use the Domain Name, as it would invariably result in misleading diversion and taking unfair advantage of the Trademark.
It is implausible that the Respondent was unaware of the Complainant when it registered the Domain Name. The Complainant is well known throughout the world. In this regard, in many decisions, panels have acknowledged that the Complainant’s Trademark is widely known. The composition of the Domain Name clearly demonstrates the Respondent’s knowledge of the Complainant’s Trademark and its activities. A quick trademark search would have revealed to the Respondent the existence of the Complainant and its trademarks. The Respondent’s failure to do so is a contributory factor to its bad faith. Supposing that the Respondent was not aware of the possibility of searching trademarks online before registering the Domain Name, a simple search via Google or any other search engine using the keywords “Accor” or “Accorhotels” demonstrates that all first results relate to the Complainant or its services. The Respondent appears to have been subject of a previous case in 2011. In that case, the Panel held that the Respondent’s infringements of claimant’s rights justify a transfer of the domain name <twitter.ch> to the claimant (Twitter, Inc. v. High Tech Investments LTD, WIPO Case No. DCH2011-0030).
By using the Domain Name, the Respondent was intentionally attempting to attract, for commercial gain, Internet users to the Website, by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Indeed, initially the Domain Name resolved towards a parking page with pay-per-click links related to the Complainant’s line of business. The Respondent’s operations are that it is trying to benefit from the fame of the Trademark. It is more likely than not, that the Respondent’s primary motive in registering and using the Domain Name was to capitalize on or otherwise take advantage of the Trademark through the creation of initial interest of confusion.
Moreover, email servers have been configured on the Domain Name and thus, there might be a risk that the Respondent is engaged in a phishing scheme. Therefore, the use of an email address with the Domain Name presents a significant risk where the Respondent could aim at stealing valuable information such as credit cards numbers from the Complainant’s clients or employees. In the circumstances of this case, there simply cannot be any “actual or contemplated good faith use” of the Domain Name by the Respondent or any third party, as any use would result in misleading diversion and unfairly taking advantage of the Trademark.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(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 must demonstrate that it has rights in a trademark or service mark and, if so, the Domain Name must be shown to be identical or confusingly similar to that mark.
The Complainant has sufficiently shown that it has rights in the Trademark.
The Panel finds that the Domain Name is confusingly similar to the Trademark. The Domain Name reproduces the Trademark in its entirety, only adding “com” in front of the Trademark connected with a hyphen. That addition of the term “com” preceding the rest of the Domain Name is insufficient to avoid any confusing similarity.
In addition, with regard to the generic Top-Level Domain (“gTLD”) “.com”, as it was established in many previous UDRP decisions (see A.P. Møller v. Web Society, WIPO Case No. D2000-0135; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Arab Bank for Investment And Foreign Trade (ARBIFT) v. Mr. Kenn Wagenheim / firstname.lastname@example.org, WIPO Case No. D2000-1400; Delikomat Betriebsverpflegung Gesellschaft m.b.H. v. Alexander Lehner, WIPO Case No. D2001-1447; and, Crédit Industriel et Commercial SA v. Name Privacy, WIPO Case No. D2005-0457), it does not generally affect the analysis under the first element of the Policy for the purpose of determining whether a domain name is identical or confusingly similar; indeed, the gTLD is a necessary component of the domain name.
For all the foregoing reasons, the Panel is satisfied that the first element of the Policy is met.
B. Rights or Legitimate Interests
The Respondent did not reply to the Complainant’s contentions.
The Panel has carefully considered the factual allegations that have been made by the Complainant and are supported by the submitted evidence.
Based on the record, there is no evidence of any of the circumstances set forth in paragraph 4(c) of the Policy, such as:
(i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or
(ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or
(iii) making 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.
There is no evidence in the case file of any other rights or legitimate interests in the Domain Name.
There is also no evidence that the Complainant ever permitted in any way the registration or use the Trademark, or to apply for or use any domain name incorporating the Trademark.
Furthermore, the use of the Domain Name for pay-per-click services cannot be considered a bona fide offering of goods or services. There is no evidence of any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services. There is also no evidence of any legitimate noncommercial or fair use of the Domain Name.
Moreover, as email servers have been configured on the Domain Name, there is a serious risk that the Respondent may be engaged in a phishing scheme.
Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met.
C. Registered and Used in Bad Faith
In light of the evidence filed by the Complainant, the Panel finds that the Trademark and the Complainant’s activities are well known throughout the world. Based on the facts of the matter, several circumstances indicate that the intention behind the registration of the Domain Name was in fact to profit in some fashion from or otherwise exploit the Trademark.
Furthermore, in the Panel’s view there is no other plausible explanation as to why the Domain Name was registered, other than in awareness of the Complainant and the Trademark and intending to trade off the goodwill and reputation associated with the Complainant and/or to use the Domain Name for phishing purposes.
Accordingly, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find bad faith registration and use.
In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and that the Domain Name was registered and is being used 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 <com-accorhotels.com> be transferred to the Complainant.
Willem J. H. Leppink
Date: June 11, 2019