WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Accor v. Learn Earn Online Case No. D2009-1770 1 The Parties
Complainant is Accor of Evry, France, represented by Dreyfus & associés, France.
Respondent is Learn Earn Online of Bangladesh. 2. The Domain Name And Registrar
The disputed domain name is registered with GoD, Inc. 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 GoD, Inc. a request for registrar verification in connection with the disputed domain name. On December 29, 2009, GoD, Inc. transmitted by email to the Center its verification response confirming that 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” 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 30, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 19, 2010. Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 21, 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. The Bangladeshi and Asian press have issued several articles featuring Complainant and its development in 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.
The disputed domain name directs Internet users to a website displaying sponsored links in the field of hotel services. One of those links reverts to Complainant's official website. Other links direct towards websites of Complainant's competitors.
On June 2, 2009, Complainant sent a cease-and-desist letter to Respondent by e-mail and registered mail, demanding that Respondent transfer the domain name to Complainant. Complainant's letter was followed by several email reminders. On June 23, 2009, Respondent replied to Complainant's letter and stated that he bought the domain name for the purpose of “earning income referring visitors to hotel websites.” Respondent referred Complainant to GoDaddy Auctions for the purpose of purchasing the domain name. 5. Parties' Contentions A. Complainant
Complainant contends that the disputed domain incorporates Complainant's mark in its entirety, is identical to and/or confusingly similar to Complainant's trademarks, that the Respondent has no rights or legitimate interests in the domain name and that the domain name 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
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 name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has 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.” A. Identical or Confusingly Similar
Complainant has demonstrated that it owns strong rights in the trademark ACCOR in the fields of hotel, travel and tourism services. The disputed domain name incorporates Complainant's trademark in its entirety. The addition of the word “hotels” does not avoid a finding of confusing similarity. Indeed, it exacerbates the confusing similarity because “hotels” describes Complainant's field of business. Moreover, the generic “.info” extension does not add any distinctive subject matter for the purpose of evaluating confusing similarity.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant's trademarks. B. Rights or Legitimate Interests
Complainant has contended that Respondent is not a franchisee, affiliated business or licensee of Complainant, and that Respondent is not an authorized agent of Complainant and Complainant has not authorized Respondent to register the disputed domain name or to otherwise use Complainant's marks.
The available record suggests that Respondent is not and has not been commonly known by the disputed domain name. Respondent is operating a website at the disputed domain name that simply links to Complainant's website and those of its competitors, selling services in direct competition with Complainant. Respondent is clearly attempting to confuse consumers by use of Complainant's trademark in the domain name to lure Internet users to the website, and thereby benefit commercially from “click-through” advertising fees. Such use does not constitute a bona fide, legitimate use of the domain name.
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.
Respondent was obviously aware of Complainants' trademark rights at the time of registering the disputed domain name. This is supported by the fact that Respondent is offering links on the website at the disputed domain name to Complainant's website and to websites of Complainant's competitors.
The submitted evidence demonstrates that Respondent is deliberately trading off the goodwill associated with Complainants' marks and Internet traffic intended for Complainant's website for Respondent's commercial gain by creating a likelihood of confusion with Complainant's mark. Such use evidences Respondent's bad faith.
The Panel finds that Respondent has registered and used the domain name 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 name be transferred to the Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Dated: March 6, 2010
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