Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.
Respondent is Shao He Zhang, Zhang Shao He of Changchun, Jilin, China. 2. The Domain Names and Registrars
The disputed domain names and are registered with Chengdu West Dimension Digital Technology Co., Ltd. The disputed domain name is registered with West263 International Limited (collectively the “Registrars”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2018. On January 19, 2018, the Center transmitted by e-mail to the Registrars a request for registrar verification in connection with the disputed domain names. On January 22, 2018, the Registrars transmitted by e-mail to the Center their verification responses confirming that Respondent is listed as the registrant and providing the contact details. On January 26, 2018, the Center transmitted an e-mail in English and Chinese to the Parties regarding the language of the proceeding. Complainant requested that English be the language of the proceeding on January 29, 2018. Respondent did not reply 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 in English and Chinese of the Complaint, and the proceedings commenced on February 2, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 22, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 23, 2018.
The Center appointed Yijun Tian as the sole panelist in this matter on March 12, 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
Complainant, Accor is a company incorporated in Issy-Les-Moulineaux, 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 4,000 hotels in 95 countries worldwide and over 597,000 rooms. The Accor network comprises 195 hotels located in China and has around 46,579 rooms in owned, leased and managed hotels (Annex 3 to the Complaint).
Complainant has exclusive rights in multiple trademarks incorporating its ACCOR, ACCORPLUS and ACCORHOTELS marks (the “ACCOR Marks”). Complainant is the exclusive owner of the registered ACCOR-related marks globally (Annex 5 to the Complaint), including international trademark registration ACCOR (registration no. 727696 covering China, registered since December 28, 1999), international trademark registration ACCORHOTELS (registration no. 1103847 covering China, registered since December 12, 2011); and international trademark registration ACCORPLUS (registration no. 1235841, covering China, registered since October 24, 2014). Complainant also owns a few domain names containing the ACCOR mark, such as registered on February 23, 1998; registered on April 30, 1998; and registered on May 28, 2013 (Annex 5 to the Complaint).
Respondent is Shao He Zhang, Zhang Shao He of Changchun, Jilin, China. The disputed domain names and were registered on February 17, 2017, and was registered on February 2, 2017, which are long after the ACCOR Marks were registered. According to the Complaint and relevant evidence, the disputed domain names resolved to webpages promoting an Internet-based money-earning scheme and providing contact details for persons offering the engagement of Internet users into a money earning scheme. The disputed domain names currently resolve to an inactive website. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain names , , and are identical with the trademarks ACCOR, ACCORPLUS and ACCORHOTELS in which
Complainant has rights.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant contends that the disputed domain names were registered and are being used in bad faith.
Complainant requests that the disputed domain names , , and 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 this language, Complainant would have to retain specialized translation services at a cost that is likely to be higher than the overall cost for the present proceedings.
(b) The use of a language other than English in the proceedings would impose a burden on the Complainant which must be deemed significant in view of the cost for the present proceedings.
(c) Many UDRP decisions have recognized that using the registration agreement’s language, which in the present case could be Chinese, would lay an undue burden on Complainant (Annex 7 to the Complaint).
(d) In many relevant WIPO decisions, the panel decided that since Complainant was unable to communicate in the language of the registration agreement, the proceeding would inevitably be delayed unduly, and the complainant would have to incur substantial expenses if the complainant were to submit all documents in said language (Annex 8 to the Complaint).
(e) English is currently 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, Third Edition (“WIPO Overview 3.0”) further states:
“Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.”
(WIPO Overview 3.0, section 4.5.1; see also L’Oréal 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 names , , and include the English words “hotel”, “plus” and “host” (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 names , , and were registered in Latin characters and particularly 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 names should be cancelled or transferred:
(i) the disputed domain names registered by Respondent are 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 names; and
(iii) the disputed domain names have been registered and are 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, ACCORHOTELS, and ACCORPLUS marks have been registered in jurisdictions throughout the world since 1999, 2011 and 2014 respectively (including international registrations 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 names , , and comprise the ACCOR, ACCORHOTELS, or ACCORPLUS Mark in their entirety respectively. The disputed domain names only differ from Complainant’s trademarks by the generic Top-Level Domain (“gTLD”) suffix “.host” to the ACCOR, ACCORHOTELS, or ACCORPLUS marks respectively. This does not eliminate the identity between Complainant’s registered trademarks and the disputed domain names. In relation to the gTLD suffix, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states:
“The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11).
Thus, the Panel finds that disregarding the gTLD suffix “.host”, the disputed domain names are identical to the ACCOR marks.
The Panel therefore holds that the Complaint fulfils the first condition 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 3.0, section 2.1 and cases cited therein).
Complainant has rights in the ACCOR Marks 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 4,000 hotels in 95 countries worldwide and over 597,000 rooms, including 195 hotels located in China with46,579 rooms 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 names 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 names:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain names 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”, “accorplus” or “accorhotels” in the disputed domain names. Rather, Respondent appears to attempt to take advantage of the goodwill associated with Complainant’s ACCOR Marks to attract Internet users to a money-earning scheme, presumably for commercial gain. 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 names. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain names. The disputed domain names , and were registered on Feburary 17, 2017, and was registered on February 2, 2017, which are long after the ACCOR Marks became widely known. The disputed domain names are identical 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 names. By contrast, the Panel finds that the disputed domain names resolved to websites related to an Internet money-earning scheme and are 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 names. 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 names in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain names primarily for the purpose of selling, renting, or otherwise transferring the disputed domain names 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 names; or
(ii) Respondent has registered the disputed domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding disputed domain names, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain names primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain names, 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 names 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 195 hotels, located in China with 46,579 rooms 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 names.
The Panel therefore finds that the ACCOR mark is not one that a 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 names were 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
As noted above, the disputed domain names have been used to attract Internet users seeking Complainant’s websites to an Internet-based money-earning scheme, presumably for the commercial gain of Respondent. Such conduct falls squarely within the language of paragraph 4(b)(iv) of the Policy.
Further, given the lack of response, the Panel cannot envision any other plausible use of the disputed domain names that would not be in bad faith under the present circumstances. Taking into account all the circumstances of this case, the Panel concludes that current inactive use of the disputed domain names by Respondent is in bad faith also.
In summary, Respondent, by choosing to register and use the disputed domain names, 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 names and the conduct of Respondent as far as the websites to which the disputed domain names resolve are indicative of registration and use of the disputed domain names in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition 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 names , , and be transferred to Complainant.
Yijun Tian
Sole Panelist
Dated: April 4, 2018
Full & Egal Universal Law Academy