WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Accor v. Mathew Lloyd, RealHostValue/Adi Dhama, PrivacyP Case No. D2009-1726 1. The Parties
Complainant is Accor, of Evry, France, represented by Dreyfus & associés, France.
Respondents are Mathew Lloyd, of Leeds, United Kingdom of Great Britain and Northern Ireland; RealHostValue/Adi Dhama of Yogyakarta, Indonesia and PrivacyP of Moergestel, Netherlands. 2. The Domain Names and Registrar
The disputed domain names , , , , , , and are registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 16, 2009. On December 17, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain names. On December 19, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on December 21, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on December 24, 2009. The Center verified that 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 29, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 18, 2010. Even though an email communication was received from Mathew Lloyd on January 6, 2010, Respondents did not submit a formal response. Accordingly, the Center notified the Respondents' default on January 20, 2010.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on February 2, 2010. 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
Complainant is involved in the business of travel and tourism, and owns about 4,000 hotels in 100 countries, including in Europe and Asia.
Complainant owns and operates several hotels under the name ACCOR and is the owner of numerous trademark registrations, including the following:
ACCOR, International Trademark No. 480492, registered November 10, 1983
ACCOR, International Trademark No. 537520, registered March 28, 1989
ACCOR (design), International Trademark No. 687060, registered on January 19, 1998
ACCOR, International Trademark No. 727696, registered December 28, 1999.
Complainant owns the following domain names, among others: , , and . Internet users can visit these websites to find hotels within Complainant's group and reserve hotel rooms or other travel and tourism related services.
Complainant is also the owner of the trademark MERCURE used in connection with hotel and restaurant services. Complainant owns the following trademarks:
MERCURE, International Trademark No. 403334, registered December 14, 1973 M GRAND MERCURE (design), International Trademark No. 900839, registered September 29, 2006
MERCURE (design), Community Trademark No. 006277032, registered September 1, 2008
GRAND MERCURE, Community Trademark No. 005005707, registered March 6, 2007
MERCURE, Benelux Trademark No. 0426173, registered March 17, 1987
GRAND MERCURE, Indonesian Trademark No. IDM000163551, registered June 5, 2008
GRAND MERCURE, Indonesian Trademark No. IDM000163541, registered October 2, 2006
Complainant also owns the domain names , and , from which Internet users can make hotel and apartment reservations.
The disputed domain names were all registered on the same day and by the same hosting service, Real Host Value.
On June 2, 2009, Complainant sent a cease-and-desist letter to Respondents by e-mail and registered mail, demanding that Respondents cancel the disputed domain names. Respondent Adi Dhama of Real Host Value responded that he would not cancel the domain names but was willing to sell them. He provided a price list for each domain name, including a demand for USD 20,000 for the domain name. Subsequent emails from Respondent continued to demand payment, including an email stating that he would not transfer the domain names at no cost and that Complainant should “not be stingy”. 5. Parties' Contentions A. Complainant
Complainant contends that the disputed domain names incorporate Complainant's marks in their entirety, are identical to and/or confusingly similar to Complainant's trademarks, that Respondents have no rights or legitimate interests in the domain names and that the domain names were registered and are being used in bad faith. B. Respondent
Respondents did not reply to the Complainant's contentions. 6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain namse are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondents have no rights or legitimate interests with respect to the disputed domain names; and
(iii) the disputed domain names have been registered and used in bad faith.
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”.
On the current record, the Panel is satisfied on balance of probabilities that the two Respondent entities are controlled by one single entity so that this proceeding may continue against the named Respondents having regard of paragraph 3(c) of the Rules. A. Identical or Confusingly Similar
Complainant has demonstrated that it owns strong rights in the trademarks ACCOR, MERCURE and GRAND MERCURE in the fields of hotel, travel and tourism services. Several of the disputed domain names incorporate Complainant's trademark in its entirety. The addition of the generic words “website” “media” “magazine” “domain” “host” “studio” and “hotel” do not avoid a finding of confusing similarity. Moreover, the generic “.com” TLD extension does not add any distinctive subject matter for the purpose of evaluating confusing similarity.
Accordingly, the Panel finds that the disputed domain names are confusingly similar to Complainant's trademarks. B. Rights or Legitimate Interests
Respondents are not franchisees, affiliated businesses or licensees of Complainant. Respondents are not authorized agents of Complainant and Complainant has not authorized Respondents to register the disputed domain names or to otherwise use Complainant's marks.
Respondents are not and have not been commonly known by the disputed domain names. Since the disputed domain names were registered on April 20, 2009, they have always been inactive. There is no evidence that Respondents have made any demonstrable preparation for use of the domain names in connection with a bona fide offering of services. Rather, the evidence indicates that Respondents registered and used the disputed domain names to attempt to sell the domain names at considerable profit to the highest bidder. Such use does not constitute a bona fide, legitimate use of the domain name in the circumstances of this case.
Accordingly, the Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the disputed domain name in bad faith:
(i) circumstances indicating that the respondent has registered or 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 the complainant, for valuable consideration in excess of the documented out of pocket costs directly related to the domain name; or
(ii) the respondent has 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website or other on line 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 of a product or service on the respondent's website or location.
Respondents were obviously aware of Complainants' trademark rights at the time of registering the disputed domain names. The domain names were all registered on the same day and contain two different trademarks belonging to Complainant. Moreover, the addition of the generic terms “hotel” and “hotels” in the disputed domain names incorporating Complainant's GRAND MERCURE trademark indicate Respondents' awareness of Complainant's trademark rights in the hotel industry.
The submitted evidence demonstrates that Respondents have registered or acquired the domain names primarily for the purpose of selling, renting or otherwise transferring the domain names registration to Complainant who is the owner of the trademarks or to a competitor of Complainant, for valuable consideration in excess of the documented out of pocket costs directly related to the domain name. In response to Complainant's cease and desist letter, one of the Respondents sent an email to Complainant listing the price for each domain name, and subsequent correspondence from Respondent telling Complainant not to be “stingy”.
The Panel finds that Respondents have registered and used the domain names in bad faith. 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 names , , , , be transferred to the Complainant and that the domain names , , , and be cancelled as requested by the Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Dated: February 22, 2009
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