WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. Wenhao
Case No. D2019-1503
1. The Parties
The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Wenhao, China.
2. The Domain Name and Registrar
The disputed domain name <accorhotels-benelux.com> is registered with Xin Net Technology Corp. (the “Registrar”).
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2019. On June 27, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 28, 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.
On June 28, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on July 1, 2019. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceedings commenced on July 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 24, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 26, 2019.
The Center appointed Douglas Clark as the sole panelist in this matter on August 6, 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 Complainant is a French multinational hotel group that operates more than 4,500 hotels around the world under different brands. Its house brand is ACCOR. Its main website is at “www.accorhotels.com”. The Complainant owns trademark registrations for ACCOR including International Registration No. 742032 registered on August 25, 2000 in class 38 which designates China. It is also the registrant of ACCORHOTELS under European Union Trademark No. 010248466 registered on March 20, 2012, covering services in classes 35, 39 and 43 and International Trademark Registration No. 1103847 registered on December 12, 2011, which designates China in the same classes.
The Respondent is an individual based in China.
The disputed domain name was registered on July 26, 2018 and resolves to a page providing numerous links to online gambling platforms. The disputed domain name also appears to have been configured to allow for email traffic.
5. Parties’ Contentions
The Complainant’s contentions are as follows:
Identical or confusingly similar
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s registered trademarks ACCOR and ACCORHOTELS as the disputed domain name incorporates both the Complainant’s marks. The inclusion of a geographic descriptor “benelux” and the addition of the generic Top-Level Domain (“gTLD”) “.com” do not avoid the finding of confusing similarity.
No rights or legitimate interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any license or trademark registration for ACCOR or ACCORHOTELS. It is not known by the disputed domain name. Therefore, the Respondent has no rights or legitimate interests in the disputed domain name.
The disputed domain name was registered and is being used in bad faith
Before acquiring the disputed domain name, it is highly likely that the Respondent knew of the Complainant’s rights in the ACCOR and ACCORHOTELS marks because of its worldwide reputation. The disputed domain name is being used in bad faith for commercial gain to redirect consumers to the Respondent’s website. Further email servers have been configured on the disputed domain name, therefore there is also a likelihood of phishing occurring.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 Language of the Proceeding
The language of the Registration Agreement is in Chinese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant requested the language of the proceeding to be English on the grounds that it is based in France and does not understand Chinese and that it would be expensive for the Complainant to translate the Complaint into Chinese. Further, the disputed domain name is composed of Latin characters and English is an international business language.
The Respondent did not respond to this request.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel.
The Respondent did not respond to the Center’s preliminary determination. This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”.
Further, translating the Complaint would cause unnecessary delay in this matter.
These factors lead the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
6.2 Substantive Issues
A. Identical or Confusingly Similar
The disputed domain name <accorhotels-benelux.com> is confusingly similar to the Complainant’s ACCOR and ACCORHOTELS trademarks.
It incorporates the Complainant’s registered trademarks ACCOR and ACCORHOTELS in their entirety together with the geographical designation “benelux”. In the case of ACCOR, it also includes the term “hotels”. According to previous UDRP decisions, the “addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”. (See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The first element of paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, 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. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered in bad faith and is being used in bad faith.
This case falls within paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your web site or location.”
The disputed domain name directs to a page providing numerous links to online gambling platforms. This has been clearly done to create confusion on the part of Internet users and most likely generates click-through revenue.
The third part of paragraph 4(a) of the policy is therefore satisfied.
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-benelux.com> be transferred to the Complainant.
Date: August 21, 2019