WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Accor, SoLuxury HMC v. Cong Ty Khach San Sang Trong Viet Nam / Vu Manh Tan Case No. D2009-1768 1. The Parties
The Complainants are Accor, and its affiliated company SoLuxury HMC, both of Evry, France, represented by Dreyfus & associés, France.
The Respondent is Cong Ty Khach San Sang Trong Viet Nam / Vu Manh Tan of Ha Noi, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 23, 2009. On December 23, 2009, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 5, 2010, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on January 5, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint on January 11, 2010. The Center verified that the 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 the Respondent of the Complaint, and the proceedings commenced on January 12, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 1, 2010. On January 11 and 13, 2010, the Center received an email message from Viet Vision Travel stating that the email address which was used to register the domain name was used by a former employee of Viet Vision Travel and disclaiming any responsibility for registration of the Domain Name. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 2, 2010.
The Center appointed Michelle Brownlee as the sole panelist in this matter on February 10, 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
The Complainants own International Registration Nos. 406255, 863332, and 939096, which designate Viet Nam, for the trademark SOFITEL in connection with a variety of goods and services related to the Complainants' hotel and restaurant services. The earliest of these registrations issued in 1974. The Domain Name was registered on March 20, 2009. 5. Parties' Contentions A. Complainant
The Complainants, together, are one of the largest travel and tourism business organizations in the world, and own more the 4,000 hotels in 100 countries worldwide. The Complainants' SOFITEL trademark is a premium brand, used with luxury hotels in 126 hotels in 40 countries, including a hotel in Hanoi called the Sofitel Metropole Hanoi. This hotel was named the first “Sofitel Legend” hotel in July of 2009. The Sofitel Legend line of hotels are historical properties with exclusive services that combine heritage with modernity.
The Domain Name directs Internet users to a Viet Nam luxury hotels web site that offers to book accommodations in the Complainants' Hanoi Sofitel Metropole hotel and offers information about services available at the hotel.
On October 20, 2009, the Complainants sent a cease and desist letter by email to the email address listed in the WhoIs record for the Domain Name. On November 5, 2009, the Complainants received an email response from the owner of the email address stating that he had not registered the Domain Name.
The Complainants contend that the Domain Name is confusingly similar to the SOFITEL trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith. B. Respondent
The Respondent did not reply to the Complainants' contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Domain Name is confusingly similar to the Complainants' SOFITEL trademark. The SOFITEL trademark is a coined term that has no meaning other than its trademark significance. Moreover, the pairing of the SOFITEL mark with the words “Hanoi” and “Metropole” suggest a connection between the Domain Name and the Complainants' SOFITEL trademark because the Domain Name is either identical or nearly identical to the name of a hotel that is operated by the Complainants.1 B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
The Respondent has not presented evidence that he used or made preparations to use the Domain Name in connection with a bona fide offering of goods or services, that he is commonly known by the Domain Name or that he is making a noncommercial or fair use of the Domain Name. The only evidence of use of the Domain Name in the record is a screen shot of a web site that features information about the Complainants' Hanoi Sofitel Metropole hotel and that offers online reservation services for the hotel. Because the services offered at the web site are likely to create confusion and suggest sponsorship by or affiliation with the Complainants, they cannot be considered a bona fide offering.
The Complainant has established this element of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a 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 that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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 its web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainants have established bad faith under paragraph 4(b)(iv) of the Policy. The Respondent is intentionally using the Domain Name to direct traffic to a web site that is likely to create confusion as to source and results in commercial gain to the Respondent. The web site associated with the Domain Name is likely to confuse Internet users who visit the site, since it gives the appearance of an official site of the Complainants' Hanoi Sofitel Metropole hotel. The site displays “Hanoi Sofitel Metropole Hotel” at the top of the page and “Welcome to Hanoi Sofitel Metropole Hotel” in smaller letters further down the page. There is no indication of the association of any other entity with the web site besides some mentions of “Viet Nam Luxury Hotels” as the company that accepts payment for bookings. However, considering the rest of the content of the site, it is not clear that this entity is not associated with the Complainants. The Respondent registered and used the Domain Name to direct traffic to a web site that was designed to solicit hotel reservations from Internet users who would likely believe that they were booking directly with the Complainants. 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.
Michelle Brownlee
Sole Panelist
Dated: February 22, 2010
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