The Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.
The Respondent is On behalf of OWNER, c/o of Alexandria, Virginia, United States of America / Tulip Trading Company of Charlestown, Nevis, Saint Kitts and Nevis. 2. The Domain Name and Registrar
The disputed domain name, , is registered with Key-Systems GmbH dba (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 25, 2017. On October 25, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 26, 2017, 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 the Complainant on November 1, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on November 3, 2017.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 30, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on December 1, 2017.
The Center appointed Dennis A. Foster as the sole panelist in this matter on December 8, 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
Founded in 1967, the Complainant is based in France, but owns and operates thousands of hotels throughout the world. With respect to its ACCOR mark, the Complainant has obtained, among others, International trademark registrations (e.g., Registration No. 4804902; registered November 10, 1983) and registrations with the United States Patent and Trademark Office ("USPTO") (e.g., Registration No. 2838984; registered on May 4, 2004).
The Respondent owns the disputed domain name, , which was registered on July 21, 2017. The disputed domain name resolves to a parked webpage that presents links to hotel reservation services, some of which bear the Complainant's ACCOR mark. 5. Parties' Contentions A. Complainant
- The Complainant is a French company that was founded in 1967. Since then, it has become a world leader in the hotel industry. The Complainant owns more than 4,100 hotels in 95 countries, including many hotels throughout North America. The hotels operate under several famous brand names.
- The Complainant conducts operations under its mark, ACCOR, for which it has obtained, among other registrations, International trademark and USPTO service mark registrations. The Complainant also uses the domain names and in connection with its worldwide business.
- The disputed domain name, , is confusingly similar to the Complainant's ACCOR mark. The name contains the full mark, and the addition of the generic terms, "reservation" and "mail", along with a hyphen and the generic Top-Level Domain ("gTLD") ".com", do not provide a meaningful distinction. Indeed, the additions increase the potential for confusion, as Internet users might unsuccessfully seek reservations for the Complainant's hotels or attempt to utilize an incorrect email route in seeking to contact the Complainant.
- The Respondent has no rights or legitimate interests in the disputed domain name. There exists neither affiliation between the Complainant and the Respondent nor any authorization by the Complainant for the Respondent to use the ACCOR mark in connection with a domain name or otherwise. Moreover, there is no indication that the Respondent has been known as the disputed domain name.
- The disputed domain name is connected with a parking page that presents links to hotel reservations services that include references to the Complainant's mark. The Respondent collects pay-per-click revenue from this website. This activity constitutes neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name.
- The Respondent has employed a privacy shield service to hide its identity, further evidence of its lack of rights or legitimate interests in the name. Finally, the Respondent failed to respond to a cease-and-desist letter (followed by several reminders), still more evidence of the Respondent's illegitimate conduct.
- The disputed domain name was registered and is being used in bad faith. The Respondent knew or should have known of the Complainant's trademark rights, as the mark is world famous. Also, the Respondent has engaged in a pattern of registering domain names that contain well-known marks and has been the subject of many UDRP proceedings in which it has failed to prevail.
- The Respondent is using the disputed domain name in bad faith to gain commercially from pay-per-click links based on the likely confusion between the name and the Complainant's mark and business. Moreover, the inclusion of the word "mail" in the disputed domain name suggests that the Respondent is engaged in illegitimate "phishing" activity, again evidence of bad faith use of the name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Pursuant to paragraphs 4(a)(i) - (iii) of the Policy, the Panel may find in favor of the Complainant and order the transfer of the disputed domain name, , provided the Complainant can demonstrate that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant has established its rights in the ACCOR trademark by presentation to the Panel of International trademark and USPTO service mark registrations for that mark. See, Accor v. Reap Usd,WIPO Case No. D2016-0177 ("[a] registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner."); and, Accor v. Huajicani Hujiancai,WIPO Case No. D2014-0189 ("[t]he Complainant has established rights in the ACCOR trademark, by reason of its registration...").
The Panel must now evaluate whether the disputed domain name, , is identical or confusing similar to the ACCOR trademark. Simple visual inspection allows the Panel to conclude that the name and mark are not identical. However, the full mark is contained within the name. Moreover, the addition of the generic terms, "reservation" and "mail," create minimal distinction between the two. Countless previous UDRP panels have concluded that the addition of generic terms to a well-known trademark may not avoid a finding of confusing similarity between a disputed domain name and that mark. Also, the inclusion of a hyphen and a gTLD in the disputed domain name create no meaningful distinction with respect to the Complainant's mark. Therefore, the Panel considers the disputed domain name to be confusingly similar to the Complainant's mark. See, Accor v. Domains By Proxy / David West,WIPO Case No. D2017-1409 (finding to be confusingly similar to the ACCOR mark); Accor v. DreamHost, Long Giang,WIPO Case No. D2014-0196 (finding to be confusingly similar to the ACCOR mark); and CBS Broadcasting, Inc. v. LA-Twilight-Zone,WIPO Case No. D2000-0397 ("[t]he addition of a hyphen does not decrease the confusing similarity between the domain name and the mark.").
As a result, the Panel concludes that the Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests
The disputed domain name has been found by the Panel to be confusingly similar to the Complainant's ACCOR mark. Also, the Complainant has denied, without contradiction, affiliation with the Respondent or authorization granted the Respondent to use that mark in any capacity. As such, the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It is then incumbent upon the Respondent to present convincing evidence that it does have such rights or legitimate interests in that name. See, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 2.1; and Hermès International v. Registrant [3585485]: Boris Moser,WIPO Case No. D2011-0406 ("[i]t is the consensus view of WIPO UDRP panelists that once a complainant has established a prima facie case, it is respondent's responsibility to prove otherwise.").
The Respondent has failed to file a Response. Therefore, the Panel is left to search elsewhere in the record to determine whether there is any conceivable rebuttal to the Complainant's prima facie case. In doing so, the Panel will use Policy paragraph 4(c) as a guide to possible arguments in favor of the Respondent.
Given the Respondent's company name, Tulip Trading Party, the Panel believes that there is no reason to suspect that the Respondent has ever been commonly known as the disputed domain name, . Thus, Policy paragraph 4(c)(ii) is determined by the Panel to be inapplicable.
The Panel accepts the Complainant's reasonable contention, supported by creditable submissions to the Panel, that the Respondent uses the disputed domain name to resolve to a parking page that presents links to hotel reservation services, some of which refer to the Complainant's ACCOR mark. The Panel also agrees with the Complainant that it is likely that at least some of these linkage options allow the Respondent to collect pay-per-click fees. Such usage, i.e., pay-per-click links to services that compete with or duplicate those of a complainant, has been found by many prior UDRP panels to constitute neither "a bona fide offering of goods and services" per Policy paragraph 4(c)(i) nor "a legitimate noncommercial or fair use" of a disputed domain name per Policy paragraph 4(c)(iii). See, Fontem Holdings 4, B.V. v. J- B-, Limestar Inc.,WIPO Case No. D2016-0344 ("...prior panels deciding under the Policy have held that pay-per-click...parking pages built around a trademark...do not constitute a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy, nor do they constitute a legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii)."); and MasterCard International Incorporated ("MasterCard") v. Wavepass AS,WIPO Case No. D2012-1765 ("...Respondent redirects Internet users to a parking website...which cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name."). The Panel concurs with those prior rulings and shall apply the same reasoning in this case. As a consequence, the Panel determines that the Complainant's prima facie case must prevail in this instance.
Accordingly, the Panel concludes that the Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
As noted above, the Panel accepted the Complainant's contention that the disputed domain name is used to host a website that provides pay-per-click links to hotel reservation services that compete with the Complainant's offerings. Given the confusing similarity between the disputed domain name and the Complainant's ACCOR mark, the Panel concludes that the Respondent intends through such usage to gain commercially based on the likelihood of confusion between the disputed domain name and mark regarding the source, sponsorship, affiliation or endorsement of the Respondent's website. Thus, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith per Policy paragraph 4(b)(iv). See, Societe Nationale des Chemins de Fer Francais (SNCF) v. Comdot Internet Services Private Limited./PrivacyP,WIPO Case No. D2008-0025 ("...the use of a domain name to point to a website that offers sponsored links to other websites providing services or goods which are similar to those offered by a complainant's own website is evidence of bad faith."); and Caesars Entertainment, Inc. v. Infomax, Ltd.,WIPO Case No. D2005-0032 ("The Panel is satisfied that the Respondent is intentionally using the Domain Name to attract internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's well-known mark, and that the Respondent gains commercially from such confusion by receiving 'click-through' commissions. This constitutes evidence of registration and use in bad faith in accordance with paragraph 4(b)(iv) of the Policy.")
The Panel also accepts the Complainant's contention, supported by the many UDRP cases cited in the Complaint, which were verified by the Panel, that the Respondent has engaged in a pattern of registering and using domain names that include the well-known marks of third parties. Ergo, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith per Policy paragraph 4(b)(ii). See, for example, Blue Apron, LLC v. Tulip Trading Company,WIPO Case No. D2017-1035; France Manche (SA), Groupe EUROTUNNEL (SE) v. Tulip Trading Company,WIPO Case No. D2017-0721; and National Grid Electricity Transmission Plc and NGrid Intellectual Property Limited v. Tulip Trading Company,WIPO Case No. D2016-0036 ("...there are three earlier decisions by UDRP panels in which the Respondent is named and an adverse decision made, involving its registration of domain names using the well-known marks of entities...").
Finally, the Panel agrees with the Complainant's assertion that the inclusion of the word "mail" at the end of the disputed domain name is particularly disturbing. It suggests that the Respondent likely intends to use the name to "phish" for information from unsuspecting Internet users who may believe, incorrectly, that they are legitimately contacting the Complainant. This then constitutes one more reason that the Panel believes that the Respondent registered and is using the disputed domain name in bad faith. See, Yahoo! Inc. v. Ifeanyi Alusigwe, Tritonell Constructions Nig. Lt,WIPO Case No. D2017-0722 (finding and to be registered and used in bad faith, where the respondent was using those disputed domain names "to perpetrate a phishing scheme in order to trick users of the Complainant's products and services into revealing their login names and passwords"); and Carrefour v. Name Redacted,WIPO Case No. D2015-1174 (finding bad faith registration and use of , where that disputed domain name was determined to be used for an "organized phishing scheme practice").
Therefore, the Panel concludes that the Complainant has satisfied the third element of 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 disputed domain name, , be transferred to the Complainant.
Dennis A. Foster
Sole Panelist
Date: December 22, 2017
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