The Complainant is Accor of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.
The Respondent is Liu Xiao Yan of Wei Fang, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 15, 2019. On February 15, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 18, 2019, 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 February 22, 2019 providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 26, 2019.
On February 22, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on February 25, 2019. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceedings commenced on March 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 24, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 25, 2019.
The Center appointed Francine Tan as the sole panelist in this matter on April 3, 2019. 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 is an international hotel operator, established in 1967. It operates more than 4,500 hotels in 100 countries worldwide. The Complainant operates notable hotel chains such as the Fairmont, Raffles, Swissotel, Sofitel, Pullman, Novotel, Grand Mercure and Ibis. The Complainant also operates numerous hotels in China where the Respondent is located.
The Complainant owns trade mark registrations for ACCOR and ACCORHOTELS in many countries worldwide, in relation to hotel and restaurant services. The Complainant’s trade mark registrations include European Union Trade Mark No. 010248466 for ACCORHOTELS, registered on March 20, 2012; International Registration No. 742032 for ACCOR, registered on August 25, 2000 (with designations including China); and International Registration No. 1103847 for ACCORHOTELS, registered on December 12, 2011 (with designations including China).
The Complainant also owns domain name registrations such as (registered on February 23, 1998) and (registered on April 30, 1998).
The disputed domain name was registered on August 28, 2018 and resolves to a Chinese online betting platform. 5. Parties’ Contentions A. Complainant
1. The disputed domain name is identical and/or confusingly similar to the Complainant’s ACCOR and ACCORHOTELS trade marks. The disputed domain name reproduces the Complainant’s said trade marks in their entirety.
The Complainant’s mark has been considered by panels in earlier UDRP decisions to be well known or famous (see e.g. Accor v. DreamHost, Long Giang,WIPO Case No. D2014-0196; Accor and SoLuxury HMC v. “m on”,WIPO Case No. D2012-2262; and Accor and SoLuxury HMC v. Fundacion Private Whois,WIPO Case No. D2012-1654).
The addition of the geographical term “europe” is insufficient to avoid any likelihood of confusion. The Complainant’s ACCORHOTELS trade mark is recognizable within the disputed domain name.
2. The Respondent has not rights or legitimate interests in respect of the disputed domain name.
The Respondent is not affiliated with the Complainant and has not been authorized by the Complainant to use or register its ACCOR and ACCORHOTELS trade marks, or to register any domain name incorporating those trade marks. The Respondent has no prior rights in the trade marks ACCOR and ACCORHOTELS. Further, the Respondent is not commonly known by the disputed domain name or the names ACCOR and ACCORHOTELS. The disputed domain name is so confusingly similar to the Complainant’s well-known trade marks ACCOR and ACCORHOTELS that the Respondent cannot claim to be intending to develop a legitimate activity through the disputed domain name. The Respondent’s use of the disputed domain name in relation to an online betting platform does not constitute a bona fide offering of goods or services.
3. The disputed domain name was registered and is being used in bad faith. It is not plausible that the Respondent was unaware of the Complainant when it registered the disputed domain name, the Complainant being so well known throughout the world. The Complainant’s trade mark rights predate the registration date of the disputed domain name. By using the disputed domain name, the Respondent was intentionally attempting to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark, as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. The Respondent’s conduct causes great and irreparable harm to the Complainant and its trade marks, and disrupts its business. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issue; Language of the Proceeding
The language of the Registration Agreement in this case is Chinese. The Complainant requested, notwithstanding, for English to be adopted in this proceeding.
Paragraph 11(a) of the Rules states that: “[u]nless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
Paragraph 10(c) of the Rules states that “The Panel shall ensure that the administrative proceeding takes place with due expedition”.
The Complainant made the request on the basis that the Complainant is unable to communicate in Chinese; and having the proceeding conducted in Chinese would unduly delay the proceeding as the Complaint and evidence would have to be translated into Chinese. Moreover, the dispute domain name only contains Latin characters and contains the English terms “hotels” and “Europe”, which strongly suggest that the Respondent has knowledge of English.
The Respondent did not respond on the issue of the language of the proceeding.
The Panel is persuaded, taking into consideration the words forming the disputed domain name, that the Respondent has a sufficient level of familiarity and comfort with the English language.
The Panel does not find the Respondent would be prejudiced by the Panel’s decision for English to apply in this proceeding. The Respondent was given the opportunity to respond in this proceeding in Chinese and to raise its concerns, if any, in relation to the issue of the language of the proceeding, but it did not. For the Complainant to have the Complaint and annexes translated into Chinese would lead to a delay in the proceeding whereas the mandate is for panels to ensure that the proceeding takes place with due expedition.
The Panel therefore determines that it would be appropriate for English to be adopted as the language of the proceeding. 6.2 Substantive Issues A. Identical or Confusingly Similar
The Complainant has established it has rights in the trade marks ACCOR and ACCORHOTELS. Both marks have been incorporated into the disputed domain name and are identifiable therein. The Panel agrees that the disputed domain name is confusingly similar to both marks, in particular to the Complainant’s ACCORHOTELS trade mark, and that the addition of the hyphen and geographical term “europe” (and the term “hotels” with respect to the ACCOR trade mark) therein does not serve to remove the confusing similarity. This finding is consistent with the principle established in numerous earlier UDRP decisions, as is encapsulated in section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition.
The Complainant has therefore satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, which has not been rebutted by the Respondent.
The Complainant’s ACCOR and ACCORHOTELS marks are well known in many countries across the world, including where the Respondent is located. The Panel agrees that it is not plausible that the Respondent registered the disputed domain name without any knowledge of the Complainant and its trade marks. Considering the fact that the disputed domain name is made up of the specific combination of:
(i) the Complainant’s well-known trade mark, ACCOR;
(ii) the word “hotels”, which corresponds to the services the Complainant is well known for; and
(iii) the word “Europe”, which correspond to the location or geographical origin of the Complainant;
the Panel cannot see how the Respondent would be able to legitimately claim any rights in the disputed domain name.
The disputed domain name has not been used in connection with a bona fide offering of goods or services.
The Complainant has therefore satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the UDRP provides that the following circumstances, if found to be present, shall be evidence of the registration and the use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
The Respondent chose a domain name which incorporates the well-known ACCOR/ACCORHOTELS trade mark. The Panel finds that the Respondent’s choice of the disputed domain name reflects bad faith and an intention on the Respondent’s part to prevent the Complainant from reflecting its ACCOR/ACCORHOTELS marks in a corresponding domain name and/or to attempt to attract, for commercial gain, Internet users to its online location, by creating a likelihood of confusion with the Complainant’s said trade marks as to the source, sponsorship, affiliation or endorsement of the said online location.
The disputed domain name is so obviously connected with the Complainant’s well-known ACCOR/ ACCORHOTELS trade marks that its use in relation to an online betting platform suggests opportunistic bad faith.
The Complainant has therefore satisfied paragraph 4(a)(iii) 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.
Francine Tan
Sole Panelist
Date: April 17, 2019
Full & Egal Universal Law Academy