Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.
Respondent is Zhou Kang of Anqing, Anhui, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 24, 2016. On November 24, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 25, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On November 29, 2016, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant confirmed its request that English be the language of the proceeding on November 29, 2016. Respondent did not comment on the language of the proceeding by the specified due date.
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 and 4, the Center formally notified Respondent of the Complaint in English and Chinese, and the proceedings commenced on December 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 26, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 27, 2016.
The Center appointed Yijun Tian as the sole panelist in this matter on January 3, 2017. 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, Accor is a company incorporated in France. It is one of the world leaders in economic and mid-scale hotels, and a major player in upscale and luxury hospitality services. Based on the information provided by Complainant, Accor operates more than 3,800 hotels in 92 countries worldwide and over 500,000 rooms. The Accor network comprises 168 hotels located in China and has around 18,653 employees in owned, leased and managed hotels.
Complainant has exclusive rights in multiple trademarks incorporating its ACCOR and ACCORHOTELS marks (ACCOR Marks). Complainant is the exclusive owner of the registered ACCOR-related marks globally (Annex 10 to the Complaint), including international trademark registration ACCOR (registration no. 727696 covering China, since December 28, 1999 and international trademark registration ACCORHOTELS (registration no. 1103847 covering China, since December 12, 2011. Complainant also owns a few domain names containing the ACCOR mark, such as (Annex 11 to the Complaint).
Respondent is Zhou Kang of Anqing, Anhui, China.
The disputed domain name was registered on May 17, 2016, which is long after the ACCOR Marks were registered. The disputed domain name currently resolves to an inactive website. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to the ACCOR Marks in which Complainant has rights.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be transferred to it. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
(a) Complainant is located in France and has no knowledge of Chinese. To proceed in Chinese, Complainant would have to retain specialized translation services at a cost that is likely to be higher than the overall cost for the present proceeding.
(b) The use of another language than English in the proceeding would impose a burden on Complainant which must be deemed significant in view of the cost for the present proceeding.
(c) Many UDRP decisions have recognized that using the registration agreement’s language, which in the present case is Chinese, would lay an undue burden on Complainant.
(d) Today English is the primary language for international relations and it is one of the working languages of the Center.
Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
Paragraph 11(a) allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) further provides:
“in certain situations, where the respondent can apparently understand the language of the complaint (or having been given a fair chance to object has not done so), and complainant would be unfairly disadvantaged by being forced to translate, the WIPO Center as a provider may accept the language of the complaint, even if it is different from the language of the registration agreement” (WIPO Overview 2.0, ; see also L’Oreal S.A. v. MUNHYUNJA, WIPO Case No. D2003-0585).
The Panel has taken into consideration the fact that Complainant is a company from France, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name includes the English words “hotel” and “vip” (abbreviation of “very important person”) (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047).
On the record, the Panel finds persuasive evidence in the present proceeding to suggest that Respondent may have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name was registered in Latin characters and paragraph 4.3particularly in English language, rather than in Chinese script; (b) the Center has notified Respondent of the proceeding in both Chinese and English; (c) the Center informed Respondent that it would accept a response in either English or Chinese.
Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantive Matters
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a) - (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the ACCOR Marks acquired through registrations. Based on the information provided by Complainant, the ACCOR Marks have been registered worldwide since 1999 (including international registration covering China), and Complainant has a widespread reputation as one of the world leaders in economic and mid-scale hotels, and a major player in upscale and luxury hospitality services.
The disputed domain name comprises the ACCOR Mark in its entirety. The disputed domain name only differs from Complainant’s ACCOR trademark by the addition of the English words “hotels” and “vip”. It only differs from Complainant’s ACCORHOTELS mark by the addition of the English word “vip”. This does not eliminate the identity or at least the confusing similarity between Complainant’s registered trademark and the disputed domain name.
Previous UDRP panels have consistently held that a domain name may be identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662).
Generally a respondent “may not avoid likely confusion by appropriating another’s entire mark and adding descriptive or non-distinctive matter to it” (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; General Electric Company v. CPIC NET and Hussain Syed,WIPO Case No. D2001-0087).
The addition of the descriptive terms “hotels” and/or “vip” as suffixes to Complainant’s mark fails to distinguish to the Panel the disputed domain name from Complainant’s trademark. By contrast, it may increase the likelihood of confusion. Moreover, Complainant is one of the world leaders in economic and mid-scale hotels (as mentioned above). Internet users who visit Respondent’s website are likely to be confused and may falsely believe that the disputed domain name is operated by Complainant for providing ACCOR-branded products or services.
Thus, the Panel finds that the additions are not sufficient to negate the confusing similarity between the disputed domain name and the ACCOR Marks.
In any event, Top-Level Domain suffixes are typically disregarded under the confusing similarity test, leaving the disputed domain name identical to the ACCORHOTELS mark.
The Panel therefore holds that the Complaint fulfils the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain names:
(i) use of, or preparations to use, the disputed domain names in connection with a bona fide offering of goods or services;
(ii) the fact that Respondent has been commonly known by the disputed domain names; or
(iii) legitimate noncommercial or fair use of the disputed domain names.
The overall burden of proof on this element rests with Complainant. However, 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 shifts to the respondent to rebut the complainant’s contentions. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 2.0, paragraph 2.1 and cases cited therein).
Complainant has rights in the ACCOR Marks globally since 1999. According to Complainant, Complainant is one of the leading companies in the field of hotels, upscale and luxury hospitality services. It has more than 3,800 hotels in 92 countries worldwide and over 500,000 rooms, including 168 hotels located in China and has around 18,653 employees in owned, leased and managed hotels.
Moreover, Respondent is not an authorized dealer of ACCOR branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the words “accor” or “accorhotels” in the disputed domain name. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the ACCOR Marks or to apply for or use any domain name incorporating the ACCOR Marks;
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. The disputed domain name was registered on May 17, 2016, which is long after the ACCOR Marks became widely known. The disputed domain name is identical or confusingly similar to Complainant’s ACCOR Marks;
(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, according to the evidence submitted by Complainant, the disputed domain name is not currently associated with active website.
The Panel finds that Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain name. The Panel therefore holds also taking into consideration the Panel’s findings below, that Complainant has established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding disputed domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed 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.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith.
a) Registered in Bad Faith
The Panel finds that Complainant has a widespread reputation in the ACCOR Marks with regard to its products or services. Complainant has registered its ACCOR Marks internationally since 1999, including international registrations covering China. Complainant has 168 hotels, located in China and has around 18,653 employees in owned, leased and managed hotels. It is not conceivable that Respondent would not have had actual notice of Complainant’s trademark right at the time of the registration of the disputed domain name.
The Panel therefore finds that the ACCOR mark is not one that trader could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Moreover, Respondent has chosen not to respond to Complainant’s allegations. According to the panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith.” (See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787).
Thus, the Panel concludes that the disputed domain name was registered in bad faith with the intent to create an impression of an association with Complainant’s ACCOR-branded products or services.
b) Used in Bad Faith
At the time this decision is rendered, the disputed domain name is currently inactive. In terms of inactive domain name, the WIPO Overview 2.0 provides: “with comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, panels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith” (paragraph 3.2., WIPO Overview 2.0).
The WIPO Overview 2.0 further states: “The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant’s concealment of its identity. Panels may draw inferences about whether the disputed domain name was used in bad faith given the circumstances surrounding registration, and vice versa.”
Based on information provided by Complainant, Complainant has been one of the world leaders in economic and mid-scale hotels, and a major player in upscale and luxury hospitality services in the world for many years. Complainant has rights in the ACCOR Marks globally since 1999. It has more than 3,800 hotels in 92 countries worldwide and over 500,000 rooms, including168 hotels located in China. As such, Complainant’s ACCOR Marks, arguably, are widely known.
Further, given the lack of response, the Panel cannot envision any plausible use of the disputed domain name that would not be in bad faith under the present circumstances. Taking into account all the circumstances of this case, the Panel concludes that the passively held disputed domain name is used by Respondent in bad faith also.
In summary, Respondent, by choosing to register and use the disputed domain name, intended to ride on the goodwill of Complainant’s trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolve is indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third element of paragraph 4(a) of the Policy. 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 disputed domain name be transferred to Complainant.
Yijun Tian
Sole Panelist
Dated: January 10, 2017
Full & Egal Universal Law Academy