The Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.
The Respondent is WhoisGuard Inc., WhoisGuard Protected of Panama City, Panama / Mehmet Ferman Dogan, Accor Hotels of West Midlands, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 24, 2017. On November 24, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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 December 1, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint.
At the request of the Complainant, the administrative proceeding was suspended on December 5, 2017, and reinstituted on March 5, 2018.
The Complainant filed an amended Complaint on March 5, 2018.
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 March 6, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 26, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 27, 2018.
The Center appointed Alexander Duisberg as the sole panelist in this matter on April 18, 2018. 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
The Complainant Accor is a French company and is a world leader in lower cost to mid-range hotels with more than 45 years of business activity. The Complainant operates more than 4,000 hotels in 95 countries worldwide. The hotel group of the Complainant includes hotel chains such as PULLMAN, NOVOTEL, MERCURE, and IBIS, which are widely recognized around the world for their service quality.
The Complainant is the owner of the following trademark registrations: European Union trademark ACCORHOTELS (Reg. No. 010248466) registered on March 20, 2012, the International trademark ACCOR (Reg. No. 742032) registered on August 25, 2000, and the International trademark ACCORHOTELS (Reg. No. 1280325) registered on July 13, 2015 (the “ACCOR Trademarks”). Besides, the Complainant has also registered and operates the following domain names incorporating the ACCOR Trademarks: , registered on February 23, 1998, and , registered on April 30, 1998 (the “ACCOR Domain Names”).
The disputed domain name was registered on May 1, 2017. All registrations of the ACCOR Trademarks and ACCOR Domain Names took place before the disputed domain name was registered.
The Complainant has submitted screenshots of the Respondent’s website under the disputed domain name which prior to the complaint resolved to a parking page displaying sponsored links relating to Complainant’s business activity. Besides, on the Respondent’s website email servers have been configured. Currently, there are no contents available under the disputed domain name.
The Complainant sent several warning letters to the Registrar dated May 22, 2017, May 29, 2017, and two reminders dated June 5 and 12, 2017 which were forwarded to the Respondent. Here the Complainant claimed a violation of its trademark rights and requested the Respondent to voluntarily transfer the disputed domain name and to refrain from using the ACCOR Trademarks without prior written authorization. The Respondent did not agree to transfer the disputed domain name to the Complainant alleging that the disputed domain name was free at the moment of the purchase. 5. Parties’ Contentions A. Complainant
The Complainant has produced evidence for its previous ACCOR Trademarks which refer to hotel and restaurant services and also for the ACCOR Domain Names that it owns. The Complainant alleges that the ACCOR Trademarks are well-known trademarks in the field of hotel and restaurant services.
The Complainant claims that the disputed domain name is confusingly similar to its ACCOR Trademarks. According to the Complainant the disputed domain name entirely reproduces its ACCOR Trademarks. The sole difference between the disputed domain name and the ACCOR Trademarks is the mere addition of the generic words “and” and “resorts”. The Complainant states that the addition of such words does not alter the risk of confusion with the well-known ACCOR Trademarks. Besides, the Complainant asserts that the mere adjunction of the generic Top-Level Domains (“gTLDs”) “.com” would be insufficient to avoid any likelihood of confusion.
Furthermore, the Complainant states that the Respondent has no rights or legitimate interests in the disputed domain name since the Respondent is not affiliated in any way with the Complainant and has not been authorized by the Complainant to use its trademarks or to seek registration of any domain names incorporating said trademarks.
According to the Complainant the disputed domain name has been registered and used in bad faith. Having regard to the well-known character of the ACCOR Trademarks in the field of hotel services, the Complainant asserts that the Respondent must have known the ACCOR Trademarks when registering the disputed domain name. Moreover, the Complainant points out that the Respondent registered the disputed domain name through a privacy shield service to hide his identity and contact details, which indicates registration in bad faith. In addition, email servers have been configured on the disputed domain name, which according to the Complainant could indicate that the Respondent is engaged in a phishing scheme. Besides, the Complainant asserts that the Respondent used the disputed domain name to direct Internet users to a parking page displaying sponsored links which relate to Complainant’s business activity.
Against this background, the Complainant requests that the Panel orders the disputed domain name to be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove each of the following:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel acknowledges the consensus view − as set forth in section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions,, Third Edition (the “WIPO Overview 3.0”) − that the Respondent’s default to respond to the Complaint does not automatically result in a decision in favor of the Complainant. The Complainant must establish each of the three elements required by paragraph 4(a) of the Policy. Although the Panel may draw appropriate inferences from the Respondent’s default (e.g., to regard factual allegations which are not inherently implausible as being true), paragraph 4 of the Policy requires the Complainant to support its assertions with actual evidence in order to succeed in the UDRP proceeding. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s ACCOR Trademarks, and, thus, finds the requirement of paragraph 4(a)(i) of the Policy to be met.
UDRP Panels have usually found the incorporated trademark to constitute the dominant or principal component of the domain name (see Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd.,WIPO Case No. D2001-0110; eBay Inc. v. ebayMoving / Izik Apo,WIPO Case No. D2006-1307). The addition of generic terms does not serve to distinguish the domain name from the trademark and is insufficient to avoid any likelihood of confusion (see Viacom International Inc. v. Frank F. Jackson and Nancy Miller,WIPO Case No. D2003-0755; Swarovski Aktiengesellschaft v. Luo Li,WIPO Case No. D2012-1604).
This is the case here. The disputed domain name completely incorporates the Complainant’s ACCOR Trademarks. The terms “and” and “resorts” within the disputed domain name are of purely descriptive character and cannot rule out confusing similarity. To the contrary, the term “resorts” may increase the confusing similarity with the Complainant’s ACCOR Trademarks because this term refers to the main business activity of the Complainant in the field of leisure and hotel services. As such, the average consumer will associate the disputed domain name with the Complainant.
The generic gTLDs “.com” does not have a distinguishing effect and can be ignored when comparing the disputed domain name to Complainant’s Trademarks (see Accor v. Noldc Inc.,WIPO Case No. D2005-0016). B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, unrebutted by the Respondent.
In line with previous UDRP decisions, it is sufficient for the Complainant to make a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name, in order to shift the burden to produce opposing evidence to the Respondent (see, inter alia, Champion Innovations, Ltd. v. Udo Dussling (45FHH),WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
The Complainant has brought forward that the Respondent has registered the disputed domain name which entirely incorporates the ACCOR Trademarks without prior authorization from the Complainant. Besides, the disputed domain name contained a parking page with sponsored links relating to the Complainant’s business activities. Hence, the Respondent takes unfair benefit of the repute of the ACCOR Trademarks to divert Internet users to websites similar to the Complainant’s business activities for the Respondent’s own commercial gain. Against this background, there are neither indications for a bona fide offering of goods and services of the Respondent, nor for a noncommercial or fair use of the disputed domain name.
The Respondent has not filed any Response to the Complaint and, therefore, has not alleged any facts or elements to justify rights or legitimate interests in the disputed domain name. Moreover, the Complainant maintains that the Respondent is not related in any way to its business and that no license or authorization has been granted to the Respondent to make any use, nor apply for registration of the disputed domain name. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name has been registered and is being used in bad faith according to paragraph 4(a)(iii) of the Policy.
A registration in bad faith occurs, inter alia, where the Respondent knew or should have known of the registration and use of the trademarks prior to registering the disputed domain name (see Research in MotionLtd. V. Privacy Lockked LLC/Nat Collicot,WIPO Case No. D2009-0320; The Gap, Inc. v. Deng Youqian,WIPO Case No. D2009-0113). This is the case here. The Panel shares the holdings of previous UDRP panel decisions which have recognized the ACCOR Trademarks as well-known (see e.g., Accor v. DreamHost, Long Giang,WIPO Case No. D2014-0196; Accor and SoLuxury HMC v. Fundacion Private Whois,WIPO Case No. D2012-1654). Due to the well-known character of the ACCOR Trademarks also the Respondent must have known of their registration and use.
The addition of the terms “and resorts” in the disputed domain name further underlines such knowledge of the Respondent. Such addition reflects the business activities of the Complainant and could, thus, not have been chosen randomly. In view of the Panel, it is rather a clear indication that the Respondent must have been aware of the business activities of the Complainant under the ACCOR Trademarks and that the Respondent deliberately chose the disputed domain name to mislead the Internet users who are searching for the hotel services of the Complainant.
In the pertinent case, the Panel deems the registration through a privacy shield service as a further indication contributing to the bad faith assessment. In the absence of any legitimate interests, the usage of a privacy service has the single aim to delay disclosure of Respondent’s true identity to avoid being notified of UDPR proceedings against him. This applies even more in the case at hand since the Respondent provided false contact details upon registration (compare e.g., Omya AG and Omya UK Limited v. DomainProtect LLC,WIPO Case No. D2012-0164; Schering Corporation v. Name Redacted,WIPO Case No. D2012-0729; LEGO Juris A/S v. Whois Privacy Protection Service, Inc. / Domains Secured, LLC,WIPO Case No. D2011-1857). The Respondent falsely mentioned as “Registrant Organization” the name of “Accor Hotels”. However, the designation “Accor Hotels” is protected in favor of the Complainant, but not the Respondent. The Respondent obviously neither works for the Complainant nor is he endorsed by any other means.
The Complainant has also established sufficient evidence that the disputed domain name is being used in bad faith. For such assessment, the Panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith (see section 3.2 of the WIPO Overview 3.0).
Such circumstances indicative of bad faith usage are fulfilled here in view of the Panel. The Respondent has taken active steps to conceal its true identity and appears to have provided false contact details. Furthermore, the Respondent used the disputed domain name incorporating the Complainant’s well-known ACCOR Trademarks to direct users to a parking website displaying sponsored links related to Complainant’s business activity. The Panel deems such behavior as an indication of bad faith usage as well (see SNCF v. Comdot Internet Services Private Limited./PrivacyP,WIPO Case No. D2008-0025). Moreover, the Complainant’s assertions have remained undisputed that the Respondent has configured e-mail services on the disputed domain name and, thus, might be engaged in a phishing scheme. Such engagement in an illegal phishing scheme is per se sufficient evidence of a bad faith usage (see OLX, Inc. v. J D Mason Singh,WIPO Case No. D2014-1037; see also section 3.4 of the WIPO Overview 3.0). Besides, since the Respondent has not replied to the Complaint, the Respondent has provided no evidence of any actual or any contemplated good faith use of the disputed domain name. Finally, the use of the disputed domain name can disrupt the Complainant’s online activities and could enable the Respondent to realize fraudulent actions while pretending to be the Complainant or a company endorsed by the Complainant. 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.
Alexander Duisberg
Sole Panelist
Date: April 30, 2018
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