WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor v. Kim hong tae
Case No. D2014-0190
1. The Parties
The Complainant is Accor of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Kim hong tae of Daegu, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <accorambassadorhotel.com> (the “Disputed Domain Name”) is registered with Megazone Corp., dba HOSTING.KR (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 7, 2014. On the same day, the Center transmitted a request for registrar verification in connection with the Disputed Domain Name by email to the Registrar. On February 10, 2014, the Registrar transmitted its verification response confirming the Respondent as the registrant and provided contact details by email to the Center.
On February 10, 2014, the Center notified the Parties in both English and Korean that the language of the Registration Agreement in this case was Korean. On the same day, the Complainant confirmed its request in the Complaint that English be the language of the proceedings. The Respondent did not send any communication with regard to the language of the proceedings.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 17, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 9, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 10, 2014.
The Center appointed Young-Hill Liew as the sole panelist of this matter on March 17, 2014. The Panel finds 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 operates more than 3,500 hotels in 92 countries worldwide and over 450,000 rooms, ranging from economy to upscale including notable hotel chains such as Pullman, Novotel, Mercure and Ibis. In the Republic of Korea, the Complainant operates Pullman, Novotel, Mercure and Ibis hotels in a number of cities including Daegu where the Respondent is located. The Complainant registered the international trademark ACCOR No. 953507 on August 16, 2007, which is protected in the Republic of Korea for the services covered in classes 9, 16, 35, 36, 41 and 43. The Complainant also registered domain names reflecting its trademark including <accor.cn> and <accorhotels.com> in order to promote its services.
The Respondent registered the Disputed Domain Name <accorambassadorhotel.com> on November 20, 2011. When the Complainant’s representative sent a cease-and-desist letter on August 28, 2012 to the Respondent requesting the Respondent to “cancel the disputed domain name”, the Respondent sought a payment of approximately USD 2,000 in return for the transfer of the Disputed Domain Name in its reply on September 12, 2012.
5. Parties’ Contentions
The Complainant contends that the Complainant owns and operates hotels under the well-known trademark ACCOR and that the Disputed Domain Name is confusingly similar to the Complainant’s registered trademark. The Complainant contends that the Disputed Domain Name reproduces the Complainant’s well-known trademark ACCOR in its entirety and that adding the generic terms “ambassador” and “hotel” is insufficient to avoid confusing similarity.
The Complainant also contends that the Respondent has no rights or legitimate interests in the Disputed Domain Name. According to the Complainant, the Respondent, who is not commonly known by the name “Accor”, is not in any way affiliated with the Complainant and neither licensed nor authorized to use the ACCOR trademark. In addition, the Complainant contends that a legitimate noncommercial or fair use of the Disputed Domain Name cannot be inferred due to the Respondent’s clearly demonstrated intention for commercial gain.
The Complainant further contends that the Disputed Domain Name was registered and is being used by the Respondent in bad faith. According to the Complainant, it is implausible that the Respondent was unaware of the existence of the Complainant and its trademark when registering the Disputed Domain Name. Moreover, the Complainant contends that the Respondent is taking advantage of the Complainant’s trademark to generate undue profits.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4 of the Policy, the Complainant must prove that:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark to which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
A. Language of Proceedings
According to paragraph 11 of the Rules, the language of the administrative proceedings shall be the language of the registration agreement unless the panel decides otherwise. It is noted that the language of the Registration Agreement for the Disputed Domain Name was Korean. The Complainant requested English to be the language of the proceedings and the Respondent has failed to submit any objection to the Complainant’s request. The Panel further notes that the Respondent replied to the Complainant representative’s cease-and-desist letter in English, which shows that the Complainant must have good knowledge of the English language. Therefore, the Panel determines that English shall be the language of the proceedings in this case.
B. Identical or Confusingly Similar
The Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s world famous trademark ACCOR.
The Complainant has established that it is the owner of the registered trademark ACCOR in many jurisdictions throughout the world. It is well established that the incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to a complainant’s registered mark (The Coca-Cola Company v. PrivacyProtect.org / Acosta Jose Julian, WIPO Case No. D2010-0335; RapidShare AG, Christian Schmid v. InvisibleRegistration.com, Domain Admin, WIPO Case No. D2010-1059; and Accor v. Lee Dong Youn, WIPO Case No. D2008-0705).
The Disputed Domain Name incorporates the trademark ACCOR in its entirety in addition to the generic terms “ambassador” and “hotel”. A number of WIPO UDRP decisions have established that adding a generic term to a complainant’s trademark does not reduce the confusing similarity between a trademark and a domain name (Eurodrive Services and Distribution N.V v. Transure Enterprise Ltd, Host Master and Above.com Domain Privacy, WIPO Case No. D2012-1453). In the Eurodrive case, a Spanish word signifying “tyre”, which described the complainant’s field of business, was added to the complainant’s trademark EUROMASTER, and it was decided that the addition of the Spanish equivalent to “tyre”, a generic term describing the complainant’s field of business, did not reduce the confusing similarity between the complainant’s trademark EUROMASTER and the domain name. Similarly, in this case, the Panel finds that the term “hotel” describes the Complainant’s field of business and the term “ambassador” is also a generic term, which the Complainant has used for its hotels in the Republic of Korea (including Daegu where the Respondent is located). Indeed, the use of “hotel” and “ambassador” adds to the confusing similarity because they describe the Complainant’s field of business along with the name of the hotels that the Complainant owns. Thus, the Panel agrees that the inclusion of these generic terms is insufficient to reduce the confusing similarity.
Moreover, in this case the addition of the generic Top-Level Domain (gTLD) “.com” does not have any impact on the overall impression of the dominant portion of the Disputed Domain Name and is therefore irrelevant in determining the confusing similarity between the trademark and the Disputed Domain Name.
Therefore, the Panel concludes that the Disputed Domain Name is confusingly similar to the trademarks in which the Complainant has rights, and paragraph 4(a)(i) of the Policy is satisfied.
C. Rights or Legitimate Interests
The Respondent has failed to file any response in these proceedings. The Complainant has an established reputation in many jurisdictions throughout the world in its trademark ACCOR. The Complainant has asserted that it has neither licensed nor otherwise authorized the Respondent to use the Complainant’s trademark ACCOR or to apply for any domain name incorporating any such mark.
The Panel agrees that “where a complainant has asserted that the respondent has no rights or legitimate interest in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion.” Do the Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624. The Disputed Domain Name does not resolve to any website and the Panel could not find any grounds of rights or legitimate interests on the part of the Respondent on the available record. Thus, in the absence of a response or any communication from the Respondent the Panel believes the Complainant has established a prima facie case that the Respondent has no rights or legitimate interest in the Disputed Domain Name, which the Respondent has not rebutted, and satisfied the second element under paragraph 4(a) of the Policy.
D. Registered and Used in Bad Faith
A number of WIPO UDRP decisions held that the Complainant’s trademark ACCOR is well known worldwide (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; and Accor v. Domainjet, Inc, WIPO Case No. D2012-0038). The Respondent’s incorporation of a well-known trademark in its entirety to the Disputed Domain Name in addition to two generic terms describing the Complainant’s business strongly suggests the Respondent’s awareness of the existence of the Complainant’s trademark. A number of WIPO UDRP decisions held that the awareness of a corresponding mark at the time of the registration of the domain name suggests bad faith (Caixa D’Estalvis I Pensions de Barcelona (“La Caixa”) v. Eric Adam, WIPO Case No. D2006-0464; Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270). Therefore, the Panel finds that the Respondent registered the Disputed Domain Name in bad faith since the Respondent must have known the Complainant’s trademark at the time of registration.
Furthermore, the offer to sell a domain name in excess of out of pocket expenses can be a compelling evidence of bad faith registration and use (Imara Trade Marks BVI Limited v. Direct Privacy ID 1078D, Domain Name Proxy Service, Inc., WIPO Case No. D2012-2183). The Complainant submitted that the Respondent attempted to sell the Disputed Domain Name to the Complainant for approximately USD 2,000, which is clearly in excess of out of pocket expenses. Further, the current passive holding of the Disputed Domain Name does not prevent the Panel’s finding of bad faith use under the circumstances of this case.
The Respondent has failed to submit any evidence or arguments to rebut the above contentions of the Complainant.
Therefore, the Panel concludes that the Disputed Domain Name was registered and is being used in bad faith, and that paragraph 4(a)(iii) of the Policy is satisfied.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders the Disputed Domain Name <accorambassadorhotel.com> be cancelled as requested by the Complainant.
Date: March 31, 2014