The Complainant is Accor of Paris, France (“Complainant”), represented by Dreyfus & associés, France.
The Respondent is Octave Clavet of Montreal, Quebec, Canada (“Respondent”). 2. The Domain Name and Registrar
The domain name at issue, (the “Disputed Domain Name”), is registered with GoD (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 10, 2012. On that date, the Center sent a request to the Registrar for verification of information in connection with the Disputed Domain Name. On July 11, 2012, the Registrar sent an email to the Center with a verification response confirming that Respondent is listed as the registrant and providing the Registrant’s 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 13, 2012. In accordance with paragraph 5(a) of the Rule, the Response was due on August 2, 2012. Respondent did not submit any response. Accordingly, the Center sent notification of Respondent’s default on August 3, 2012.
The Center appointed Andrew Bridges as the sole panelist in this matter on August 15, 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 paragraph 7 of the Rules. 4. Factual Background
As Respondent has not submitted any information for consideration, the Panel finds the following facts based on the Complaint and accompanying exhibits:
Complainant is a leader in the global hospitality industry and has provided hotel services for nearly 45 years. It presently runs more than 4,200 hotels in 91 countries, including the hotel chains PULLMAN, NOVOTEL, MERCURE, and IBIS. In Canada, Complainant operates 28 hotels and employs more than 330 people (as of December 31, 2011). In connection with its business, Complainant operates the domain names , , , and . The websites associated with these domain names allow users to find and book hotel rooms or use other of Complainant’s services.
Complainant owns the rights in the International Trademark registration no. 953507 for ACCOR (including figurative elements of the mark) dating from August 16, 2007, with extension to numerous jurisdictions. This trademark covers goods and services including hotel services as well as consulting and advice in the hotel industry. Complainant also owns the rights in Canadian trademark registration no. TMA 595006 for the word “Accor” as of May 28, 2001. That registration covers travel information, hotel services, and hotel room reservations.
Respondent registered the Disputed Domain Name on December 2, 2011. After learning about the registration and discovering that the Disputed Domain Name resolved to a parking page displaying a list of links to commercial sites, Complainant sent a cease-and-desist letter via email on February 10, 2012, asking Respondent to cancel the Disputed Domain Name. After Complainant sent a reminder email on March 1, 2012, Smart Names replied on behalf of Respondent, stating that “this domain name belongs to one of our customers… he would transfer the domain name to your customer at USD800 immediately.”
On March 5, 2012, Complainant replied that the requested price “is not justified since the domain name’s value is provided by the value of the trademark ACCOR and offered to reimburse the Registrant’s documented registration fees. Smart Names replied on March 7, 2012, stating that, “[a]fter calling our customer, he would reduce the price to USD500” but that this was “the lowest price” which the customer was willing to accept. The email noted that “we think it takes more time and money for your customer to choose other ways. …” Complainant then filed the Complaint giving rise to these proceedings. 5. Parties’ Contentions A. Complainant
Complainant asserts that the Disputed Domain Name is confusingly similar to its registered ACCOR trademark. It also contends that the addition of the word “holidays” as a suffix does not distinguish the Disputed Domain Name and in fact increases the likelihood of confusion since Complainant operates hotels, which are frequently associated with holidays. Complainant believes that Internet users could mistakenly believe that the Disputed Domain Name is associated with its hospitality business.
Complainant has no past or present affiliation with Respondent and has not authorized it to use its trademark. Complainant further states that Respondent has no prior rights or legitimate interests in the Disputed Domain Name since the registration of the ACCOR trademark predates Respondent’s registration of the Disputed Domain Name. Complainant argues that the close similarity between its mark and the Disputed Domain Name precludes the possibility that Respondent intended to use the Disputed Domain Name to develop legitimate business activities or services. Additionally, Complainant asserts that Respondent is not commonly known by the name “Accor” and has not used the Disputed Domain Name in connection with a bona fide offering of goods or services.
Complainant contends that the Disputed Domain Name initially pointed to a parking page but now redirects users toward several URLs that resolve to different commercial websites. Depending on which link a user selects, the initial parking page may still appear along with pay-per-click links related to hotels, which could generate revenues for Respondent, according to the Complaint. The communications with Smart Names on behalf of Respondent also show that Respondent’s primary purpose in registering the Disputed Domain Name was to sell it at a profit instead of using it to advance legitimate business operations.
Complainant argues that Respondent registered the Disputed Domain Name in bad faith because: (1) Respondent would have been aware of Complainant given its reputation in Canada and around the world; (2) previous panels have considered Complainant’s trademark as “widely-known”; (3) the combination of “holidays” with Complainant’s trademark shows that Respondent knew about Complainant’s business; and (4) Respondent’s request for USD 800 to transfer the Disputed Domain Name shows that Respondent’s purpose was to sell the Disputed Domain Name at a price exceeding the cost of registration, which only the value of the ACCOR trademark and its replication in the registered Disputed Domain Name could justify.
Complainant therefore requests the cancellation of the Disputed Domain Name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant requesting cancellation or transfer of a domain name must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) 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.
The discussion below will analyze the sufficiency of Complainant’s proof with respect to each requirement. A. Identical or Confusingly Similar
The Panel finds that there is sufficient evidence that the Disputed Domain Name is confusingly similar to Complainant’s ACCOR mark. The Disputed Domain Name incorporates that mark in full. The only change is the addition of the word “holidays” as a suffix. The appending of a generic term is typically insufficient to prevent confusion where the term pertains to the activities of the senior user, and indeed where the additional term is closely related to the nature of Complainant’s business it may further increase a likelihood of confusion. Indeed, at least one earlier panel has found that confusing similarity exists when a generic word like “media”, “magazine”, and “hotel” accompanies the mark ACCOR in a domain name. See Accor v. Matthew Lloyd, RealHostValue/Adi Dhama, PrivacyP,WIPO Case No. D2009-1726. Complainant has therefore satisfied the requirement of paragraph 4(a)(i) of the Policy and established that the Disputed Domain Name is confusingly similar to its registered and well-known trademark. B. Rights or Legitimate Interests
Because Respondent has not submitted any response to the Complaint, the Panel credits Complainant’s assertion that Respondent has no right or legitimate interest in the Disputed Domain Name. Respondent has no license from, authorization from, or affiliation with Complainant in any way that would justify its use of Complainant’s registered mark in the Disputed Domain Name. Additionally, there is no evidence that Respondent is commonly known by the Disputed Domain Name or has ever used the Disputed Domain Name in connection with a bona fide offering of goods or services. Rather, the unrebutted Complaint and evidence suggest that Respondent used the Disputed Domain Name to sell it for a profit and/or to divert Internet users and earn revenue from resulting pay-per-view advertising links. In light of the absence of countervailing evidence, the Panel finds that Complainant has met the requirement of paragraph 4(a)(ii) of the Policy and demonstrated that Respondent has no rights or legitimate interests in the Disputed Domain Name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides the following guidance in determining whether a domain name was registered and used in bad faith:
(i) circumstances indicating that 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 [respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) 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 respondent has engaged in a pattern of such conduct; or
(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] website or other online location, by creating a likelihood of confusion with complainant's mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or of a product or service on respondent’s website or location.
Although these circumstances are not the exclusive markers of bad faith, the Panel finds that the unrebutted allegations in the Complaint regarding Respondent’s use of the Disputed Domain Name provide a sufficient basis to conclude that the circumstances described in paragraphs 4 (b)(i) and (iv) of the Policy exist. The Complaint and its evidence suggests that Respondent acquired the Disputed Domain Name for the purpose of: (1) selling it at an inflated profit, and/or; (2) using it to attract Internet users’ attention based on the likelihood of confusion between the Disputed Domain Name and Complainant’s trademark and legitimate websites operated by Complainant.
Not only does the Disputed Domain Name incorporate the trademark of a prominent and well-known company but it has added to that mark a word closely associated with the very products and services that company offers. This suggests that Respondent was aware of Complainant’s rights in the trademark when Respondent registered the Disputed Domain Name. Given the connection between “holidays” and hotels, it is likely that Internet users associate Complainant with the Disputed Domain Name, that users visited the website at the Disputed Domain Name because of that association, and that Respondent intended to and did earn revenue because of the likelihood of confusion.
The emails on Respondent’s behalf suggest Respondent’s interest in making a profit from the sale of the Disputed Domain Name beyond Respondent’s out-of-pocket costs. Respondent’s rejection of Complainant’s offer to compensate Respondent’s documented registration-related expenses, and the statement that alternative measures of seeking cancellation would be more costly or time-consuming, bolster this finding.
In light of the above, the Panel finds that Respondent registered and used the Disputed Domain Name in bad faith. 7. Decision
For these reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be cancelled as requested by Complainant.
Andrew Bridges
Sole Panelist
Dated: September 1, 2012
Full & Egal Universal Law Academy