WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor S.A. v. Kristen Hoerl
Case No. D2007-1722
1. The Parties
The Complainant is Accor S.A., Evry, France, represented by Cabinet Dreyfus & Associ�s, France.
The Respondent is Kristen Hoerl, Auburn, Alabama, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT, trading as Internet Names Worldwide.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 21, 2007. On November 23, 2007, the Center transmitted by email to Melbourne IT a request for registrar verification in connection with the domain name at issue. On November 26, 2007, Melbourne IT 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 November 30, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was December 20, 2007. The Respondent did not submit a formal Response. Instead her Counsel sent to the Complainant, with a copy to the Center, a facsimile dated December 13, 2007, and a copy of an email to the Registrar dated January 10, 2007, the contents of which are noted below. The Center issued a formal Notification of Respondent Default on December 21, 2007.
The Center appointed Alan L. Limbury as the sole panelist in this matter on January 4, 2008. 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 the proceeding is English, the language of the Registration Agreement.
4. Factual Background
The Complainant operates hotels throughout the world, including hotels under the trademark NOVOTEL, which the Complainant has registered in many countries, beginning in 1968. The domain name at issue was registered on August 18, 2007. It resolved to the website of a hotel in Nigeria unrelated to the Complainant. By the display of the Complainant’s trademark and logos, the use of the expression “Novotel Hotels and Resorts” and the provision of an on-line reservation facility, the website falsely represented to Internet users that the hotel was one of the Complainant’s hotels.
The Complainant’s Counsel sent to the Respondent a “cease and desist” letter dated November 9, 2007. In the absence of a reply by November 21, 2007, the Complainant managed to have the link to the website cancelled that day by making representations to the host and the registrar.
5. Parties’ Contentions
A. Complainant
The Complainant seeks transfer to it of the domain name registration, saying the domain name is confusingly similar to its famous NOVOTEL mark; that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
The Respondent did not reply formally to the Complainant’s contentions. However, her Counsel’s facsimile of December 13, 2007 says the Respondent, an assistant University professor, has been the victim of identity theft. She did not register the domain name and had no knowledge of it, of any related website or of any hotel in Nigeria or elsewhere having a connection with the domain name, until she was shocked to receive the “cease and desist” letter on November 28, 2007, upon her return home after a brief absence, followed three days later by a copy of the Complaint from the Center. It appears another person used her name improperly and without her consent. She has reported this to the United States law enforcement authorities.
The Respondent disclaims any interest in the domain name and denies any suggestion of having acted in bad faith or of undue delay in replying to the Complainant. She is not a signatory to a Registration Agreement and is not subject to the jurisdiction of WIPO. She does not intend to submit to the jurisdiction of WIPO nor participate in any proceedings before WIPO.
On January 10, 2007, the Respondent’s Counsel sent to the Registrar an email stating that the Respondent does not object to the transfer of the domain name to the Complainant.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Paragraph 4(a) of the Policy sets forth three elements that must be established by the Complainant to merit a finding that the Respondent has engaged in abusive domain name registration, and for the Complainant 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 or is being used in bad faith.
This is another unfortunate case of identity theft. In DHL Operations B.V. and Deutsche Post AG v. Kathy McCarty,WIPO Case No. D2007-1431, this Panelist noted that in cases in which a Respondent consented to the transfer of the domain name at issue, some panels have held that they may forego the traditional analysis under the Policy and order the transfer of the domain name, on the footing that no dispute exists on any of the three elements that would require resolution, while other panels have proceeded to analyze whether on the evidence the three elements of the Policy are satisfied.
Since transfer requires that a Complainant establish all three elements, this Panelist inclines to the view that a brief examination of the facts is appropriate here.
A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant’s NOVOTEL mark. The Complainant has established this element.
B. Rights or Legitimate Interests
The Respondent disavows any rights or interests in the disputed domain name, since she was unaware of it until she received the “cease and desist” letter. The Complainant has established this element.
C. Registered and Used in Bad Faith
In the unusual circumstances of this case, as in DHL Operations B.V. and Deutsche Post AG v. Kathy McCarty,WIPO Case No. D2007-1431, there can be no question of impugning the good faith of the Respondent, who appears to have had nothing to do with the registration or use of the disputed domain name and was unaware of it until she received the “cease and desist” letter.
Whether or not the Respondent’s identity was deliberately “hijacked” by an unknown party for the purpose of shielding its own role in registering the disputed domain name, given the world-wide notoriety of the NOVOTEL mark in relation to hotels, whoever registered the disputed domain name undoubtedly did so in bad faith and with knowledge of the Complainant’s rights. The content of the website to which the disputed domain name resolves demonstrates that, until the Complainant managed to have it disconnected, the domain name was being used in bad faith, intentionally to attract, for commercial gain, Internet users to the website by creating the likelihood of confusion with the Complainants’ NOVOTEL mark as to the source of the website and as to the hotel depicted there.
The Complainant has established that the disputed domain name was registered and is being used by someone in bad faith. Since the Respondent has been the victim of identity theft, this finding should in no way be taken as a reflection on her.
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.
Alan L. Limbury
Sole Panelist
Dated: January 18, 2008
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