Complainant is Accor of Paris, France, represented by Dreyfus & associés, France.
Respondents are Transure Enterprise Ltd and A Domain Privacy, of Tortola, British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland and Victoria, Australia, respectively. For the purpose of this decision, these two entities are found to be related and this decision applies to both equally. 2. The Domain Name and Registrar
The disputed domain name is registered with A, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the”Center”) on August 1, 2012. On August 1, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 2, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on August 2, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on August 3, 2012.
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 Respondents of the Complaint and the amended Complaint, and the proceedings commenced on August 6, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2012. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on August 27, 2012.
The Center appointed Thomas L. Creel as the sole panelist in this matter on September 12, 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. 4. Factual Background
This factual background is based upon the allegations in the amended Complaint. The Panel has reviewed that Complaint and the exhibits thereto. It finds adequate basis for the allegations and therefore adopts the following as proven facts in this proceeding.
Complainant, Accor, is a French company with a registered office in Paris. It is a world leader in economic and mid-scale hotels. It is also a major player in upscale and luxury hospitality services. Accor operates more than 4,200 hotels in 91 countries worldwide. 166 of these hotels are in Australia and Complainant employs more than 8,300 employees in that country.
In 2010, Complainant received the Tourism for Tomorrow Award from the World Travel & Tourism Council (WTTC).
Complainant owns trademark registrations for the trademark ACCOR. It also owns domain name registrations reflecting its trademark. These include , , and . It also operates the domain name . This site is used to manage the Carte Bienvenue service offered to Accor’s employees.
The disputed domain name site resolves to a parking page displaying commercial links. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name contains Complainant's trademark ACCOR in its entirety, that this is a well-known trademark worldwide and that this trademark is protected by international trademark registrations.
Complainant contends that the mere addition of the generic words “carte” and “bienvenu” in the disputed domain name is not sufficient to distinguish the disputed domain name from the trademark of Complainant. Complainant further contends that these two added words create a likelihood of confusion because Complainant offers the Carte Bienvenue to each of its employees. It argues, therefore, that the disputed domain name could mislead Internet users into thinking that it is associated with Complainant, belongs to Complainant and is a website which offers Complainant’s official content.
Complainant further contends that the deleted letter “e” at the end of the word “bienvenue” is also significant. Deletion of a letter is claimed to be taking advantage of the phenomenon of mistyping Internet addresses by Internet users. It is alleged that this practice is commonly referred to as “typosquatting” which creates a virtually identical and/or confusingly similar domain name to Complainant’s domain name.
Complainant contends that the addition of “.com” is irrelevant in determining identity or similarity with Complainant’s trademark. Complainant contends that it is well established that the top level domain name is not an element of distinctiveness that is taken into consideration when evaluating the identity or similarity of Complainant's trademark and the disputed domain name.
It is claimed that Respondents are not affiliated with Complainant in any way, nor are they authorized to use and register Complainant's trademark or to seek registration of any domain name incorporating the trademark. Furthermore, Respondents are stated not to have any prior rights or legitimate interests in the disputed domain name. Respondents are stated not to be currently known by the name “Accor” and have made no demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. Indeed, it is claimed that the disputed domain name resolves to a parking page which displays pay-per-click links related to hotels. These pay-per-click links are alleged to very likely generate revenues for Respondents.
Complainant also contends that Respondents registered and are using the disputed domain name in bad faith, as Respondents knew or must have known of Complainant and its trademark at the time of registration, considering that the trademark ACCOR is widely-known worldwide, and in Australia. Complainant explains that even if Respondents were not aware of the possibility of doing a trademark search online, a simple Google or any other search engine using the keyword “Accor” shows that all the first results relate to Complainant. The same occurs when using the keywords “Carte Bienvenue Accor”.
Complainant further contends that the use of its well-known trademark to attract Internet users to Respondents’ website for commercial gain constitutes bad faith. Complainant also points to Respondents’ long pattern of abusive registration, infringement and cybersquatting. In each UDRP proceeding involving Respondents, the UDRP panel is said to have ordered a transfer or cancellation of the domain name. Such conduct is alleged to be evidence of the use of the disputed domain name at issue in bad faith. B. Respondents
The Respondents did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant has demonstrated its rights to the trademark ACCOR. It has also established that ACCOR is a well-known trademark, both world-wide and in Australia.
The Panel concludes the disputed domain name is confusingly similar to Complainant’s trademark. Many previous UDRP decisions have found that where a domain name incorporates a complainant’s well-known and registered mark in its entirety, this is typically sufficient to establish confusing similarity. This Panel agrees. The addition of the generic words “carte bienvenu”, the top level domain name “.com” and the removal of the “e” in “bienvenue” do not serve to differentiate from Complainant’s trademark such as to negate a likelihood of confusion. Indeed, the addition of the words “carte bienvenu” serves to create an impression that the disputed domain name is somehow associated with Complainant. It has been established that Complainant has used these words in connection with its business and has a registered domain name .
Accordingly, the Panel finds that the Complainant has demonstrated that the disputed domain name is confusingly similar to a trademark in which Complainant has rights. B. Rights or Legitimate Interests
Complainant has not authorized Respondents to use or register the disputed domain name containing Complainant’s trademark and Respondents are neither known by the name “Accor”. Complainant has made the required prima facie showing that Respondents have no rights or legitimate interests in the disputed domain name. There is no evidence or allegation in the record that would warrant a finding in favor of Respondents that they have any rights or legitimate interests in the disputed domain name.
Accordingly, the Panel finds that Respondents have no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered and used in bad faith. The evidence in the record clearly supports this finding.
Such evidence includes that Complainant’s trademark is well-known throughout the world, including in Australia so that Respondents were surely aware of Complainant’s trademark when they included it in its entirety in the disputed domain name; the inclusion of the words “carte” and “bienvenu” in the disputed domain name which were used by Complainant in its business and website (with an additional “e”); a routine trademark or Internet search would have revealed the existence of Complainant and its trademark; the use of the disputed domain name to direct Internet users to a webpage displaying pay-per-clicks commercial links likely to generate revenues for Respondents; the absence of any license or permission from Complainant to use the well-known trademark; and the likely diversion of Internet traffic from Complainant’s site to Respondents’ site. Such evidence supports a finding of bad faith registration and use of the disputed domain name under, inter alia, paragraph 4(b)(iv) of the Policy.
Accordingly, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith. 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 disputed domain name be cancelled.
Thomas L. Creel
Sole Panelist
Dated: September 26, 2012
Full & Egal Universal Law Academy