WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Accor v. Value-Domain Com, Value Domain Case No. D2009-1797 1. The Parties
Complainant is Accor of Evry, France, represented by Dreyfus & associés, France.
Respondent is Value-Domain Com, Value Domain, of Osaka-shi, Osaka-Fu, Japan. 2. The Domain Names and Registrar
The disputed domain names , , and are registered with eNom, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on December 30, 2009. On January 4, 2010, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the disputed domain names. On the same day, eNom, 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 January 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 26, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 27, 2010.
The Center appointed Sandra J. Franklin as the sole panelist in this matter on January 29, 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 owns and operates several hotels under NOVOTEL, MERCURE and IBIS, well-known trademarks protected worldwide for hotels and restaurants. Complainant holds various International Trademark registrations for the marks, including No. 542032 for NOVOTEL, filed in 1989, No. 403334 for MERCURE, filed in 1973, and No. 541432 for IBIS, filed in 1989. Complainant also conducts business under its , , and domain names.
Respondent registered the disputed domain names in 2008, and makes no active use of any of them. 5. Parties' Contentions A. Complainant makes the following assertions:
1. The disputed domain names are confusingly similar to Complainant's NOVOTEL, MERCURE and IBIS marks.
2. Respondent does not have any rights or legitimate interests in the disputed domain names.
3. Respondent registered and used the disputed domain names in bad faith. B. Respondent failed to submit a Response in this proceeding 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 and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Management, Inc. v. webnet-marketing, inc., NAF Claim No. 95095 (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); See also Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009 (“Given [r]espondent's failure to submit a substantive answer in a timely fashion, the [p]anel accepts as true all allegations of the complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the domain names should be cancelled or transferred:
1 the domain names registered by Respondent are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
2 Respondent has no rights or legitimate interests in respect of the domain names; and
3 the domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that Complainant has established rights in the NOVOTEL, MERCURE and IBIS marks under Policy paragraph 4(a)(i) through its International Trademark registrations. See Google, Inc. v. DktB, NAF Claim No. 286993 (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Respondent's domain names incorporate Complainant's marks and merely add descriptive terms such as the geographical terms “arcachon” and “sarcelles”, along with the generic top-level domain (“gTLD”) “.com”. The domain name refers to a golf tournament sponsored by Complainant. The Panel finds that the disputed domain names are therefore confusingly similar to Complainant's NOVOTEL, MERCURE and IBIS marks pursuant to Policy paragraph 4(a)(i). See Trip Network Inc. v. Sigfredo Alviera, NAF Claim No. 914943 (finding that the addition of geograhic terms, such as “cancun” to the end of the CHEAPTICKETS mark in the , , , and domain names, does not overcome a finding of confusing similarity under Policy paragraph 4(a)(i)); See also Gannett Co., Inc. v. Henry Chan,WIPO Case No. D2004-0117 (“…it is well established that a domain name consisting of a (locally) well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark”); See also Trip Network Inc. v. Sigfredo Alviera, NAF Claim No. 914943 (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy paragraph 4(a)(i) analysis).
The Panel finds that Policy paragraph 4(a)(i) has been satisfied. B. Rights or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names pursuant to Policy paragraph 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions. See Domtar, Inc. v. Joel Theriault, NAF Claim No. 1089426 (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy”). Respondent has failed to submit a Response to these proceedings. Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain names pursuant to Policy paragraph 4(c).
The WhoIs information lists the registrant as “Value-Domain Com, Value Domain” There is no other evidence in the record that would indicate that Respondent is commonly known by the disputed domain names. Thus, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy paragraph 4(c)(ii). See Coppertown Drive-Thru Systems, LLC v. R. Snowden, NAF Claim No. 715089 (concluding that the respondent was not commonly known by the domain name where there was no evidence in the record, including the WhoIs information, suggesting that the respondent was commonly known by the disputed domain name).
The disputed domain names resolve to landing pages with text in Japanese. The Panel finds Respondent's failure to make an active use of the disputed domain names is not a bona fide offering of goods or services under Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names under Policy paragraph 4(c)(iii). See Bloomberg L.P. v. SC Media Services and Information SRL c/o Alexandru Lazescu, NAF Claim No. 296583 (“Respondent is wholly appropriating Complainant's mark and is not using the domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant's mark is not a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy paragraph 4(c)(iii).”); See also George Weston Bakeries Inc. v. Charles McBroom, NAF Claim No. 933276 (finding that the respondent had no rights or legitimate interests in a domain name under either Policy paragraph 4(c)(i) or Policy paragraph 4(c)(iii) where it failed to make any active use of the domain name).
The Panel finds that Policy paragraph 4(a)(ii) has been satisfied. C. Registered and Used in Bad Faith
Respondent fails to make an active use of the disputed domain names. The Panel finds that it may consider the totality of the circumstances when conducting a Policy paragraph 4(a)(iii) analysis, and that it is not limited to the enumerated factors in Policy paragraph 4(b). See Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624 (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive”). The Panel finds that Respondent's registration of domain names containing Complainant's trademarks, along with the failure to make an active use of the disputed domain names, is evidence of bad faith registration and use under Policy paragraph 4(a)(iii). See DCI S.A. v. Link Commercial Corporation,WIPO Case No. D2000-1232 (concluding that the respondent's [failure to make an active use] of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy); see also Clerical Medical Investment Group Limited v. C (Clerical & Medical Services Agency),WIPO Case No. D2000-1228 (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
The Panel finds Policy paragraph 4(a)(iii) has been satisfied. 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 Complainant and the domain names , and be cancelled.
Sandra J. Franklin
Sole Panelist
Dated: February 8, 2010
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