The Complainant is Accor of Paris, France, represented by Dreyfus & associés of France.
The Respondent is Paul Hocevar of Kansas, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Melbourne IT Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 9, 2012. On January 9, 2012, the Center transmitted by email to Melbourne IT Ltd. a request for registrar verification in connection with the Domain Name. On January 10, 2012, Melbourne IT Ltd. 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” 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, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 1, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 9, 2012.
The Center appointed Jacob (Changjie) Chen as the sole panelist in this matter on February 22, 2012. 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.
On March 15, 2012, the Center noted that due to an administrative oversight, the Notification of Complaint was not copied as required by paragraph 2(a) of the Rules to the email address […]@ and email addresses […]@ and […]@ (which were the technical and billing contact in the registrar verification). Accordingly, the Panel issued a Procedural Order No. 1 on March 16, 2012 to request the Center to forward a copy of the Complaint (including any annexes) to all available email addresses for the Respondent ([…]@) and for the technical and billing contact ([…]@ and […]@), and grant the Respondent with an additional five (5) days to indicate to the Center by return email whether it intended to participate in these proceedings. The Decision‘s due date was accordingly extended to March 26, 2012.
On March 23, 2012, the Center notified the Panel that no communication from the added email addresses or the Respondent in response to the Procedural Order No. 1 was received. 4. Factual Background
The Complainant is a French company engaged in economic and mid-scale hotels as well as upscale and luxury hospitality services under the name ACCOR.
The Complainant is the owner of the following ACCOR trademark registrations:
(i) International trademark registration No. 953507 dated August 16, 2007 and covering goods and services in classes 9, 16, 35, 36, 41 and 43;
(ii) US trademark registration No. 77238500 dated July 25, 2007 and covering goods and services in classes 9, 16, 35, 36, 38 and 43.
In addition, the Complainant operates, among others, domain names reflecting its trademarks including registered on February 23, 1998, registered on July 30, 2001, and registered on May 25, 2000.
The Respondent registered the Domain Name on July 15, 2011. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to a trademark or service mark in which it has rights. The Domain Name reproduces entirely the Complainant’s trademark ACCOR which is also the company name of the Complainant, and the mere addition of the generic word “jobs” is not sufficient to distinguish the Domain Name from the Complainant’s trademark ACCOR.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is in no way affiliated with the Complainant and has not been authorized by the Complainant to use and register its trademark or to seek registration of any domain name incorporating said marks. Besides, the Respondent is not commonly known by the name “ACCOR”. Moreover, the Respondent did not demonstrate use of, or demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services.
The Complainant finally contends that the Respondent has registered and is using the Domain Name in bad faith. It is implausible that the Respondent was unaware of the Complainant when he registered the Domain Name as the Complainant is well-known throughout the world. The Respondent uses an email address in relation with the Domain Name for fraudulent recruitment services as an official member of Accor Group, which corresponds to use in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed in a complaint, the Complainant must, in accordance with paragraph 4(a) of the Policy, satisfy the Panel of the following three elements:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
Based on the evidenced presented by the Complainant and the relevant provisions of the Policy, the Panel concludes as follows: A. Identical or Confusingly Similar
The Complainant has introduced evidence showing it has established rights in the mark ACCOR. The Complainant’s mark ACCOR is protected as trademark and the Complainant holds numerous trademark registrations for the mark ACCOR, including international trademark registration No. 953507 registered in 2007 and US trademark registration No. 77238500 registered in 2007. The above registrations of the mark ACCOR predate the registration of the Domain Name.
The Domain Name consists of two words “accor” and “jobs”. The first word “accor” is entirely identical to the Complaint’s trademark ACCOR, and the second word “jobs” is generic. The Panel finds that the addition of the generic word “jobs” is insufficient to dispel the confusing similarity arising from the incorporation of the Complainant’s ACCOR mark in the Domain Name. See Wal-Mart Stores, Inc vs. Kuchora, Kal,WIPO Case No. D2006-0033 (“It is well-established that the addition of a generic term to a trademark does not necessarily eliminate a likelihood of confusion”).
Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy and the Domain Name is confusingly similar to the Complainant’s trademark ACCOR. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy set out a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services;
(ii) the fact that Respondent has been commonly known by the Domain Name; or
(ii) legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Complainant enjoys exclusive rights regarding the trademark ACCOR and according to the Complainant, the Respondent is in no way affiliated with the Complainant and has not been authorized by the Complainant to use and register its trademark or to seek registration of any domain name incorporating the mark ACCOR.
The Panel is satisfied that the Complainant has established prima facie evidence that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(c) of the Policy. It is well established by previous UDRP decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent. See International Hospitality Management – IHM S.p.A. v. Enrico Callegari Ecostudio,WIPO Case No. D2002-0683. The Panel however notes that the Respondent has failed to file a response to prove its rights or legitimate interests in the Domain Name under paragraph 4(c) of the Policy.
Besides, the Panel holds that the Respondent’s use of the Domain Name for fraudulent recruitment has precluded a bona fide offering of goods or services.
For all of the above reasons, the Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out the following circumstance, which in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to the complainant (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) circumstances indicating that 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) circumstances indicating that the respondent registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the respondent intentionally is using the Domain Name in an attempt to attract, for commercial gain, Internet users to its 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 or of a product or service on its website or location.
Given the widespread reputation of the mark ACCOR, and the facts that the term “accor” has no meaning in English, the language of the Respondent or in any other language, the Panel views that it is inconceivable that the Respondent was unaware of the mark ACCOR when he registered the Domain Name. The creation of the e-mail address […]@ by the Respondent which contains the term “accorgroup” also evidences that the Respondent was fully aware of the Complainant and its trademark. Bad faith can be found when the Respondent was aware of the Complainant’s trademark at the time of registering the Domain Name. See LEGO Juris A/S v. Reiner Stotte,WIPO Case No. D2010-0494; and Caixa D’Estalvis I Pensions de Barcelona (“La Caixa”) v. Eric Adam,WIPO Case No. D2006-0464.
Though the Domain Name is inactive, the Respondent uses an email address in relation with the Domain Name for recruitment services as an official member of Complainant to attract job hunters to apply for jobs through said email address. The Panel finds that the Respondent’s behavior may cause consumers to mistakenly believe that the Domain Name is owned by the Complainant and the bad faith is established.
In light of the above facts and reasons, the Panel therefore determines that the Domain Name was registered and is being used in bad faith pursuant to the Policy. 7. Decision
For 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.
Jacob (Changjie) Chen
Sole Panelist
Dated: March 26, 2012
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