WIPO Arbitrationand Mediation Center
ADMINISTRATIVEPANEL DECISION
ACCOR v. J Lee
Case No. D2005-0137
1. The Parties
The Complainant is ACCOR, Evry, France, represented by Cabinet Dreyfus & Associ�s, Paris, France.
The Respondent is J Lee, Kowloon, Hong Kong, SAR of China.
2. The Domain Name and Registrar
The disputed domain name is registered with iHInc. d/b/a DotR.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on February�8,�2005. On February�8,�2005, the Center transmitted by email to iH Inc. d/b/a DotR a request for registrar verification in connection with the domain name at issue. On February�9,�2005, iH Inc. d/b/a DotR 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”), 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�22,�2005. In accordance with the Rules, paragraph 5(a), the due date for Response was March�14,�2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March�31,�2005.
The Center appointed Michel N. Bertschy as the sole panelist in this matter on April�27,�2005. 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.
The language of these administrative proceedings isEnglish, being the language of the registration agreement.
4. Factual Background
The Complainant is one of the world’s largest groups active in travel, tourism and corporate services. The group owns about 4,000 hotels in 90 countries.
The group operates websites at “” and “” providing information and customer services, such as online hotel and air travel reservation services (Exhibit 3). Moreover, among the trademarks owned by the Complainant, the following International registrations are asserted for the purpose of these proceedings: ACCOR, no. 742032, registered on August�25,�2000, covering products and services in class 38 (Internet specification); ACCOR, no. 537520, registered on March�28,�1989, covering products and services in classes 5, 8, 9, 18, 21, 25, 28, and 37; ACCOR, no. 480492, registered on November�10,�1983, covering products and services in classes 16, 39 and 42; ACCOR, no. 616274, registered on March�17,�1994, covering products and services in classes 16, 38, 39 and 42; ACCOR, n� 727696, registered on December�28,�1999, covering products and services in classes 16, 39 and 42 (Exhibit 6).
The disputed domain name was originally registered by Alvaro Collazo on October�18,�2004 (Exhibit 1). The Complainant discovered this fact and instructed attorneys to act accordingly. The Complainant’s attorneys sent a registered letter and an e-mail to Alvaro Collazo requiring him to transfer the domain name. Having received no reply, an additional e-mail was sent on December�2,�2004, to no avail (Exhibit 5).
The disputed domain name was subsequently transferredto the Respondent on December�5,�2004, (Exhibit 1). It is linked to a searchengine proposing links to travel and hotel websites, such as “Dominicanrepublic hotels”, “H�tel � prix promos”, UK & Int HotelsBookings” (Exhibit 3).
5. Parties’ Contentions
A. Complainant
The Complainant first asserts that the disputed domain name is confusingly similar and practically identical to the trademarks it has registered. The conditions set out in paragraphs 4(a)(i) of the Policy and 3(b)(viii), (b)(ix)(1) of the Rules, are therefore met for the following reasons:
In Telstra Corporation Limited v. Nuclear Marshmallows, WIPOCase No. D2000-0003, the panel decided that the gTLD extension “.com”was not to be taken into consideration when examining the identity or similaritybetween trademarks and domain names. Moreover, in Go Daddy Software, Inc.v. Daniel Hadani, WIPO Case No. D2002-0568,the panel held that the mere addition of the single letter “e” wasan obvious attempt to “typosquat” the disputed domain name and wasinsufficient to avoid confusion. Furthermore, the decision in ACCOR, Soci�t�Anonyme � Directoire et Conseil de surveillance v. Tigertail Partners, WIPOCase No. D2002-0625, rests on the recognition by numerous UDRP panels thatthe adjunction of generic words such as “hotel” was insufficientto give any distinctiveness to the disputed domain name. In fact, confusionis heightened when such words relate to the Complainant’s goods or services.
The Complainant contends secondly that the Respondent has no rights or legitimate interests in respect of the domain name. The conditions set forth in paragraphs 4(a)(ii) of the Policy and 3(b)(ix)(2) of the Rules are therefore also met.
The Respondent is not affiliated with the Complainant and has never sought or obtained consent to register the domain name. The Respondent is not a licensee nor otherwise permitted to use the Complainant’s trademarks. Finally, the Respondent does not use the domain name as part of its legal name.
Finally, the Complainant asserts that the disputed domain name was registered and is being used in bad faith pursuant to paragraphs 4(a)(iii), 4(b) of the Policy and 3(b) (ix)(3) of the Rules.
According to the Complainant, the Respondent knew or was aware of the existenceof the Accor group when it registered the domain name, since the combinationof the words “accor” and “hoteles” clearly indicatesthat the Respondent had the Complainant in mind when registering the domainname in dispute. Moreover, the Respondent apparently registered the domain namein dispute to disrupt the Complainant’s business, since it operates thewebsite “www. ” with sponsored links to travel andhotel websites.
The Complainant also finds evidence of use of the domain name in bad faith.The Respondent has intentionally attempted to attract, for commercial gain,Internet users by creating a likelihood of confusion with the Complainant’smarks. Such misconduct has been held as evidence of bad faith in past decisionssuch as The Nasdaq Stock Market, Inc. v. Vidudala Prasad, WIPOCase No. D2001-1493.
As further evidence of bad faith, the Complainant refers to the fact that theoriginal registrant has been involved – as respondent – in a numberof UDRP cases involving cybersquatting: Expedia, Inc v. Alvaro Collazo,WIPO Case No. D2003-0716; TV GloboLtda. v. Alvaro Collazo, WIPO CaseNo. D2003-1013; Bank of America Corporation v. Alvaro Collazo,National Arbitration Forum (NAF) Claim number FA248681; The Neiman MarcusGroup, Inc. v. Alvaro Collazo, NAF Claim number FA248954; Soci�t� AirFrance v. Alvaro Collazo, WIPO Case No.D2003-0417.
B. Respondent
The Respondent did not reply to the Complainant’scontentions.
6. Discussion and Findings
I. Preliminary issue
The Respondent is not the person who initially registered the domain name in dispute. He is, however, currently operating the website. Although the Complainant has not addressed the issues related to whether Alvaro Collazo and/or the Respondent should be considered as Respondents pursuant to paragraph 4 of the Rules, or to whether representations related to third parties are relevant for examining the merits of a Complaint, such issues will be examined by the Panel.
The disputed domain name was originally registered by Alvaro Collazo on October�18,�2004. The Complainant’s attorneys sent a registered letter and an e-mail to Alvaro Collazo requiring him to transfer the domain name. Having received no reply, an additional e-mail was sent on December�2,�2004, (Exhibit 5). The domain name was subsequently transferred to the Respondent on December�5,�2004, (Exhibit 1).
It appears that Alvaro Collazo transferred the domain name to the Respondenta mere three days after having received the last e-mail sent by the Complainant’sattorneys. Further, Alvaro Collazo has been involved – as Respondent –in a number of UDRP-cases involving cybersquatting (Expedia, Inc v. AlvaroCollazo, WIPO Case No. D2003-0716;TV Globo Ltda. v. Alvaro Collazo, WIPOCase No. D2003-1013; Bank of America Corporation v. Alvaro Collazo,NAF Claim number FA248681; The Neiman Marcus Group, Inc. v. Alvaro Collazo,NAF Claim number FA248954; Soci�t� Air France v. Alvaro Collazo, WIPOCase No. D2003-0417).
The evidence submitted by the Complainant (Exhibit 1 and above mentioned decisions) supports the conclusions that: (1) Alvaro Collazo has a well-known pattern of registering and using domain names in bad faith; and, (2) the domain name was transferred to the Respondent very shortly after reception of the Complainant’s request to transfer the domain name.
Based on the Complainant’s allegations and the evidence submitted, the Panel holds, in the absence of a Response, that there appears to be no explanation other than a close relationship between the Respondent and Alvaro Collazo who transferred the domain name at issue to the Respondent with the intention to obstruct any action undertaken by the Accor group to enforce their rights. Therefore, facts submitted to the Panel concerning Alvaro Collazo are relevant for examining the merits of this case.
II. Substantive issues
The Policy and the Rules establish procedures intended to assure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond.
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a reply is not due to any omission by the Center.
Paragraph 4(a) of the Policy sets forth three elements that must be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) the Respondent’s 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 Respondent’s domain name has been registered and is being used in bad faith.
Each of the aforesaid three elements must be proved by a complainant to warrant relief. Because the Respondent has defaulted in providing a Response to the allegations of the Complainant, the Panel is directed to decide these administrative proceedings on the basis of the Complaint (Rules, paragraph 14(a)), and certain factual conclusions may be drawn by the Panel on the basis of the Complainant’s undisputed representations (id., paragraph 15(a)).
A. Identical or Confusingly Similar
The Complainant uses the trademarks ACCOR in connection with its core commercial activities, namely hotel and travel services.
The Respondent has registered the domain name . This name is identical to the Complainant’s trademark ACCOR, except that (1) the domain name adds the generic top-level domain “.com”; (2) the domain name combines the Complainant’s mark with a generic term “hotel”; and, (3) the domain name employs lower case letters, while the trademark is used with upper case letters.
(1) The addition of the generic top-level domain (gTLD)name “.com” is without legal significance since use of a gTLD isrequired of domain name registrants; “.com” is one of only severalsuch gTLDs; and, “.com” does not serve to identify a specific enterpriseas a source of goods or services (Uniroyal Engineered Products, Inc. v. NaugaNetwork Services, WIPO Case No. D2000-0503).
(2) A domain name which incorporates the Complainant’s mark with theadjunction of a generic word can be deemed to be confusingly similar to themark. Confusion is only heightened when the generic word added by the Respondentis descriptive of the Complainant’s goods or services marketed in relationto the trademark. (Volvo Trademark Holding AB v. Lost in Space, SA, WIPOCase No. D2002-0445; Arthur Guinness Son & Co. (Dublin) Ltd v. SteelVertigogo, WIPO Case No. D2001-0020and Arthur Guinness Son & Co. (Dublin) Limited v. Tim Healy/BOSTH,WIPO Case No. D2001-0026). In this instance,the addition of the word “hoteles” tends to compound the confusion(ACCOR, Soci�t� Anonyme � Directoire et Conseil de Surveillance v. SEOCHO,WIPO Case No. D2002-0517).
(3) Insofar as domain names are not case sensitive, the Panel concludes thatuse of the lower case letter format in is a differencewithout legal significance from the standpoint of comparing to ACCOR (Uniroyal Engineered Products, Inc. v. Nauga Network Services,WIPO Case No. D2000-0503).
The Panel therefore holds that the domain name is confusingly similar to Complainant’s ACCOR trademarks in the sense of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lays out a non-exhaustive list of circumstances which can be contended by the Respondent to demonstrate his rights or legitimate interests.
The Complainant bears the “general burden of proof” under paragraph4(a)(ii) of the Policy, which burden rests on the Respondent once the Complainantmakes his case prima facie (Neusiedler Aktiengesellschaft v. NinayakKulkarni, WIPO Case No. D2000-1769;Dow Jones & Company and Dow Jones LP v. The Hephzibah Intro-Net ProjectLimited, WIPO Case No. D2000-0704;De Agostini S.p.A. v. Marco Cialone, WIPOCase No. DTV2002-0005). Once such prima facie case is made, the respondentcarries the burden of demonstrating rights or legitimate interests in the domainname. If a respondent fails to do so, a complainant is deemed to have satisfiedparagraph 4(a)(ii) of the Policy.
The Panel finds that the Complainant has indeed made a prima facie case showing that the Respondent has no rights or legitimate interests in the domain name within the meaning of Paragraph 4(a) of the Policy.
This finding is based on the following, non-disputed, circumstances.
The Complainant has no relationship whatsoever with Respondent and has neverauthorised the Respondent to use the domain name . Itcan be stated that the Complainant’s trademarks and service marks areknown, as the Complainant is a well-known group of hotels. There is no indicationin the file that Respondent is known under the disputed domain name. Use ofa domain name that is identical or confusingly similar to a trademark of a complainantwhen applied to goods sold by a respondent is not a bona fide use ifthe domain name. Such use serves as “bait” to attract customersto the respondent’s website, rather than as a description of the respondent’sproducts (Adobe Systems Incorporated v. Domains OZ, WIPOCase No. D2000-0057). The disputed domain name is primarily descriptiveof the Complainant’s services as it incorporates Complainant’s trademarksand service marks. The Panel finds that the fact that the domain name resolves to a website through which, among others, hotel rooms can be bookeddoes not mean that the domain name is descriptive of the Respondent’sproducts. The Respondent’s use of the disputed domain name therefore appearsto be merely intended to divert (potential) customers to the Respondent’swebsite and cannot be considered a bona fide offering of goods or services.
Given these circumstances, the Panel finds that the conditions set out in paragraph 4(a)(ii) of the Policy have been met.
C. Registered and Used in Bad Faith
For paragraph 4(a)(iii) to apply, the Complainant must demonstrate the conjunctive conditions that the Respondent registered the domain name in bad faith and continues to use it in bad faith.
Paragraph 4(b) of the Policy sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including: (1) “[the Respondent] has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark 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”; (2) “you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or” (3) “[the Respondent] has registered the domain name primarily for the purpose of disrupting the business of a competitor, or; (4)“by using the domain name [the Respondent] has intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation or endorsement of [its] website or location or of a product or service on [its] website or location.”
There is no conceivable good faith use to which the Respondent, who has norights or legitimate interests in the domain name at issue, could put the domainname, which is identical or confusingly similar to the Complainant’s mark.To quote a prior panel decision, “[B]ecause Respondent is contributingno value-added to the Internet -- it is merely attempting to exploit a generalrule of registration -- the broad community of Internet users will be betterserved by transferring the domain name to a party with a legitimate use forit”. Educational Testing Service v. TOEFL, WIPOCase No. D2000-0044. Accordingly, the Panel finds that the practice of “typosquatting”constitutes registration and use in bad faith”. (General Electric Companyv. Fisher Zvieli, a/k/a Zvieli Fisher, WIPOCase No. D2000-0377). This Panel, likewise, finds that the “typosquatting”engaged in by the Respondent here constitutes bad faith registration and use.(Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, d/b/aCupcake Patrol, WIPO Case No. D2001-0302,see above Preliminary issue).
Therefore, the Panel holds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. The Respondent clearly registered and uses the domain name to attract business to its site.
The Complainant has therefore demonstrated that the Respondent registered thedomain name in bad faith and continues to use it in bad faith (paragraph 4(a)(iii),Policy).
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Michel N. Bertschy
Sole Panelist
Dated: May�11,�2005
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