WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ACCOR v. Pham Manh Ha
Case No. D2007-1855
1. The Parties
The Complainant is ACCOR, Evry Cedex, France, represented by Cabinet Dreyfus & Associ�s, France.
The Respondent is Pham Manh Ha, Hanoi, Viet Nam.
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 December 13, 2007. On December 17, 2007, the Center transmitted by email to Melbourne IT a request for registrar verification in connection with the domain name at issue. On December 18, 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 December 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 13, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 21, 2008.
The Center appointed Alan L. Limbury as the sole panelist in this matter on January 29, 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, being the language of the registration agreement.
4. Factual Background
The Complainant operates numerous hotels around the world, including more than 189 hotels in 52 countries under the trademark SOFITEL, which the Complainant has registered in many countries, including in Vietnam (No. 406255, registered on April 18, 1974 covering goods and services in all classes, and since renewed).
The disputed domain name was registered on November 19, 2006. It resolves to a website “Under Construction”.
The Respondent did not reply to the Complainant’s “cease and desist” letters dated February 6, 2007, April 10, 2007 and July 2, 2007 sent by email and by registered mail.
5. Parties’ Contentions
A. Complainant
The Complainant says the disputed domain name, which wholly incorporates its SOFITEL mark, is identical or confusingly similar to that mark; that the Respondent is not affiliated with the Complainant in any way, was not authorized to register the disputed domain name nor to use the mark and has no rights or legitimate interests in the disputed domain name, which was registered and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements which the Complainant must satisfy in order to succeed.
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(i) the Respondent has no rights or legitimate interest in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may where reasonable be taken as true, and appropriate inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman,WIPO Case No. D2000-1080 and Alta Vista Company v. Grandtotal Finances Limited et al.,WIPO Case No. D2000-0848.
A. Identical or Confusingly Similar
The Complainant clearly has rights in the trademark SOFITEL.
The top level domain “.com” is to be ignored for the purpose of determining whether the domain name is identical or confusingly similar to the trademark. See Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
The inclusion in the disputed domain name (after “sofitel”) of the words “plaza”, “hotel” and “saigon” do nothing to detract from the distinctiveness of the trademark SOFITEL.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s SOFITEL mark. The Complainant has established this element.
B. Rights or Legitimate Interests
The SOFITEL mark is distinctive and well known. The Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has established this element.
C. Registered and Used in Bad Faith
The circumstances set out in the Policy, paragraph 4(b) are illustrative, not exhaustive. In the absence of any explanation from the Respondent, the conclusion is to this Panel inescapable that the Respondent registered the disputed domain name for the purpose of taking advantage of the Complainant’s goodwill in its well-known SOFITEL trademark and that the respondent’s registration and currently inactive use, of the disputed domain name, is intended to further that end. The fact that the disputed domain name is apparently not in active use rather leads to “under construction” notice, does not alter the Panel’s finding of bad faith in the circumstances of this case. See e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The Panel finds that the Respondent registered and is using the disputed domain name in bad faith. The Complainant has established this element.
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: February 4, 2008
Full & Egal Universal Law Academy