WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. 石磊 (Lei Shi)
Case No. D2021-0958
1. The Parties
The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is 石磊 (Lei Shi), China.
2. The Domain Name and Registrar
The disputed domain name <accorgiftcards.com> is registered with Cloud Yuqu LLC (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on March 30, 2021. On March 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 1, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differs from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 8, 2021, 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 in English on April 12, 2021.
On April 8, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on April 12, 2021. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceedings commenced on April 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2021.
The Center appointed Joseph Simone as the sole panelist in this matter on May 27, 2021. 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, Accor, is a leading hospitality group that owns, manages, and franchises hotels, resorts, and vacation properties. It is one of the largest hospitality companies in the world. The Complainant currently operates more than 4,500 hotels in 111 countries worldwide.
The Complainant has an extensive global portfolio of trade marks including the term ACCOR, including the following:
- International Trade Mark Registration No. 727696 in Classes 16, 39 and 42, extended to China, registered on December 28, 1999;
- International Trade Mark Registration No. 1471895 in Classes 35, 36, 38, 39, 41, 42, 43 and 44, extended to China, registered on December 24, 2018.
The Complainant through its authorized entity owns the domain name <accor-giftcards.com>.
The disputed domain name was registered on July 29, 2020.
According to screenshots provided by the Complainant, at the time of filing the Complaint, the disputed domain name resolved to a pay-per-click parking website. At the time of this Decision, the disputed domain name continues to do so.
5. Parties’ Contentions
The Complainant asserts that it has prior rights in the ACCOR trade marks and that it is a leading player in its fields of business.
The Complainant further notes that the disputed domain name registered by the Respondent is identical or confusingly similar to the Complainant’s ACCOR trade marks, and the addition of the generic Top-Level Domain (“gTLD”) “.com” does not affect the analysis as to whether the disputed domain name is identical or confusingly similar to the Complainant’s trade marks.
The Complainant asserts that it has not authorized the Respondent to use the ACCOR mark, and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
The Complainant also asserts that there is no evidence suggesting that the Respondent has any connection to the ACCOR mark in any way, and that there is no plausible good faith reason for the Respondent to have registered the disputed domain name, especially after considering the relevant circumstances. The Complainant therefore concludes that the registration and any use of the disputed domain name whatsoever must be in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of the Proceeding
In accordance with paragraph 11(a) of the Rules:
“[…] 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.”
In this case, the language of the Registration Agreement for the disputed domain name is Chinese. Hence, the default language of the proceeding should be Chinese.
However, the Complainant filed the Complaint in English, and requested that English be the language of the proceeding, asserting inter alia that:
- the Complainant is not familiar with the Chinese language, and to proceed in the Chinese language the Complainant would have to retain specialized translation services at a cost that is likely to be higher than the overall cost of the present proceeding;
- the disputed domain name includes only Latin characters, which strongly suggests that the Respondent has knowledge of languages other than Chinese;
- the disputed domain name redirects to a website displaying links in English; and
- English is the primary language for international relations.
The Respondent was notified in both Chinese and English of the language of the proceeding and the Complaint and did not comment on the language of the proceeding or submit any response.
Considering the circumstances in this case, the Panel has determined that the language of the proceeding shall be English, and the Panel has issued this decision in English. The Panel further finds that such determination would not cause any prejudice to either Party and would ensure that the proceeding takes place with due expedition.
B. Identical or Confusingly Similar
The Panel acknowledges that the Complainant has established rights in the ACCOR trade mark in many territories around the world.
Disregarding the “.com” gTLD, the disputed domain name incorporates the ACCOR trade mark in its entirety. Thus, the disputed domain name should be regarded as confusingly similar to the Complainant’s ACCOR trade mark. The additional term “gift cards” does not prevent a finding of confusing similarity. The Panel further notes that the dictionary term “gift cards” directly targets the Complainant’s field of business and one of its domain names <accor-giftcards.com>.
The Panel therefore finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the ACCOR trade mark and in showing that the disputed domain name is identical or confusingly similar to its mark.
C. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, the complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent carries the burden of producing evidence in support of its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
The Complainant has not authorized the Respondent to use its trade mark and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
Thus, the Complainant has established its prima facie case with satisfactory evidence.
The Respondent did not file a response and has therefore failed to assert factors or put forth evidence to establish that it enjoys rights or legitimate interests in the disputed domain name. As such, the Panel concludes that the Respondent has failed to rebut the Complainant’s prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name, and that none of the circumstances of paragraph 4(c) of the Policy is applicable in this case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances in particular but without limitation shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trade mark 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) circumstances indicating that the respondent registered the domain name to prevent the owner of the trade mark 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) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online 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 its website or location.
The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances in which bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trade mark of another party. Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230.
For the reasons discussed under this and the preceding heading, the Panel believes that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy.
When the Respondent registered the disputed domain name in July 2020, the ACCOR trade marks were already widely known and directly associated with the Complainant’s activities.
Given the extensive prior use and fame of these marks and the disputed domain name is almost identical to the Complainant’s domain name <accor-giftcards.com>, in the Panel’s view, the Respondent should have been aware of the Complainant’s marks when registering the disputed domain name.
The Respondent has provided no evidence to justify his registration of the disputed domain name. Given the foregoing, it would be unreasonable to conclude that the Respondent – at the time of the registration of the disputed domain name – was unaware of the Complainant’s trade mark, or that the Respondent’s adoption of the uncommon and distinctive trade mark ACCOR was a mere coincidence.
The Complainant’s registered trade mark rights in ACCOR for its signature products and services predate the registration date of the disputed domain name by at least two decades. A simple online search (e.g., via Baidu) for the term “accor” would have revealed that it is a world-renowned brand.
The Panel is therefore of the view that the Respondent registered the disputed domain name with full knowledge of the Complainant’s trade mark rights and with the intention of taking advantage of the fame and reputation of the Complainant’s trade mark.
Further, the Complainant presented evidence that the Respondent offered to sell the disputed domain name to the Complainant for USD 2,199, and the disputed domain name resolves to a parking page displaying pay-per-click links of various content, including the ones related to the Complainant’s field of activity. These acts constitute bad faith under paragraphs 4(b)(i) and 4(b)(iv) of the Policy.
Lastly, the Panel also notes that the Respondent has been involved in a number of UDRP proceedings.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
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 <accorgiftcards.com> be transferred to the Complainant.
Date: June 10, 2021