The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Lee Black, Japan. 2. The Domain Names and Registrar
The disputed domain names and are registered with GMO Internet, Inc. d/b/a Discount-D and O (the “Registrar”). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 27, 2019. On May 27, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 3, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 3, 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 in English on June 7, 2019.
On June 3, 219, the Center transmitted an email in English and Japanese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on June 6, 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 Japanese of the Complaint, and the proceedings commenced on June 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 8, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 9, 2019.
The Center appointed Haig Oghigian as the sole panelist in this matter on July 23, 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
As there is no submission from the Respondent, the facts are taken from the Complaint and generally accepted as true.
The Complainant is one of the leading global hotel operators and operates more than 4,500 hotels in 100 countries worldwide and around 660,500 rooms. In Japan, it operates around 14 hotels with more than 3,400 rooms.
The Complainant was founded in 1967 and owns various trademark registrations for its ACCOR and ACCORHOTELS marks including international trademark registration No. 742032 for ACCOR registered on August 25, 2000 and international trademark registration No. 1280325 for ACCORHOTELS & Device registered on July 13, 2015, designating inter alia Japan. In addition, the Complainant registered on February 23, 1998 and on April 30, 1998, reflecting its respective trademarks in order to promote its services.
The disputed domain names and were registered on February 14, 2019. Both disputed domain names resolve to parking pages displaying commercial links targeting the Complainant and its services. 5. Parties’ Contentions A. Complainant
The Complainant seeks transfer of the disputed domain names to the Complainant.
The Complainant owns registered trademark rights as set out above, which are well known and protected worldwide in particular in relation to hotels and restaurant services and that the disputed domain names wholly incorporate its trademark ACCOR and are therefore confusingly similar to the Complainant’s trademarks. Additionally, the disputed domain names imitate the Complainant’s trademark ACCORHOTELS by the mere substitution of one letter in the element “hotels”, which does not modify the overall impression of the disputed domain names which are confusingly similar to the Complainant’s trademark ACCORHOTELS.
As a result of a mere typo error committed by Internet users, particularly given that the two substituted letters are proximate in keyboard, they can access to the disputed domain names instead of reaching the domain names of the Complainant. It is likely that the disputed domain names could mislead Internet users into thinking that they are, in some way, associated with the Complainant.
The Respondent neither is affiliated with the Complainant in any way nor has been authorized by the Complainant to use and register its trademarks, or to seek registration of any domain name incorporating said trademarks. Further, the Respondent is not commonly known by the disputed domain names or the names “Accor” and / or “Accorhotels”. The Respondent has no rights or legitimate interests in respect to the disputed domain names.
It is implausible that the Respondent was unaware of the Complainant when he registered the disputed domain names because ACCOR and ACCORHOTELS are well-known trademarks throughout the world; the composition of the disputed domain names being highly similar to both of the Complainant’s trademarks indicates clearly that the Respondent had awareness of the Complainant and its trademarks; and the Complainant’s registration of these trademarks preceded the registration of the disputed domain names for years.
The Respondent’s use of the disputed domain names to resolve to parking pages displaying commercial links targeting the Complainant and its services from which the Respondent is taking unfair advantage of the Complainant’s rights. Furthermore, the email servers have been configured on the disputed domain names and thus, there might be a risk that the Respondent is engaged in a phishing scheme. Therefore, the use of email addresses with the disputed domain names presents a significant risk where the Respondent could aim at stealing valuable information such as credit cards from the Complainant’s clients or employees. The Respondent has registered and is using the disputed domain names in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
Paragraph 11(a) of the Rules gives the Panel discretion to decide the language of this proceeding:
“(a) Unless 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.”
According to information the Center has received from the concerned Registrar, the language of the Registration Agreements for the disputed domain names is Japanese.
The Complainant requested in its Complaint that English be the language of the proceeding. Following the Center’s instructions to the Parties regarding the language of the proceeding, the Complainant confirmed the request that English be the language of the proceeding, on which the Respondent did not comment.
Given the provided submissions and circumstances of this case, the Center has decided to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Japanese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The appointed panel has the discretion to decide the language of the proceeding.
The Complainant argued that the language of the proceeding be English because: (i) it has no knowledge of Japanese and would have to incur substantial cost for retaining specialized translation services, i.e., an undue burden on the Complainant; (ii) since the disputed domain names include only Latin characters, it can be assumed that the Respondent has knowledge of English; and (iii) today English is the primary language for international relations and it is one of the working languages for the Center. The Panel notes that the Center has sent its communications (including the notification of the Complaint) in both languages (i.e., English and Japanese), and the Respondent had ample opportunity to raise objections in relation to the language of the proceeding being English or make known his preference, but he did not.
Accordingly, the Panel chooses to render the decision in English. 6.2 Substantive Findings
Paragraph 4(a) of the Policy requires that the complainant prove each of the following elements:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) The respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Both disputed domain names are made up of minor misspellings of the Complainant’s registered and distinctive ACCORHOTELS mark and the generic Top-Level Domain (“gTLD”) “.com”.
Section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides:
“A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.
This stems from the fact that the domain name contains sufficiently recognizable aspects of the relevant mark. Under the second and third elements, panels will normally find that employing a misspelling in this way signals an intention on the part of the respondent (typically corroborated by infringing website content) to confuse users seeking or expecting the complainant.
Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters (e.g., upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers.”
The Panel finds that the first part of the paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not responded to the Complainant to assert any rights or legitimate interests. Section 2.1 of the WIPO Overview 3.0 provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names.
The Respondent has no affiliation with the Complainant and has no license or authority to use the Complainant’s trademarks and therefore there is no evidence showing that the Respondent has any rights or legitimate interests, or to suggest or imply that he does. As the Respondent has not sought to assert any rights or legitimate interests in the disputed domain names, nor can the Panel ascertain any such rights or legitimate interests from the content of the websites under the disputed domain names, the Panel finds the Respondent does not have rights or legitimate interests in the disputed domain names.
The Panel finds that the second part of the paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.
In addition, as the Complainant contends, both disputed domain names resolve to parking pages displaying commercial links targeting the Complainant and its services from which the Respondent is taking unfair advantage of the Complainant’s rights.
Paragraph 4(b) of the Policy provides various examples of bad faith registration, and in particular provides the following example in paragraph 4(b)(iv):
“(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 Complainant has established sufficient evidence that strongly suggests that the Respondent intentionally attempted to attract for commercial gain Internet users to the websites by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Complainant. In particular, as the Complainant alleges, ACCOR and ACCORHOTELS trademarks are well known throughout the world and predate the registration of the disputed domain names for years. The disputed domain names’ high similarity to the trademarks indicates clearly the Respondent’s awareness of the Complainant’s trademarks.
Accordingly, The Panel finds that such registration and use of the disputed domain names is in bad faith as contemplated by paragraph 4(b)(iv) of the Policy.
The Panel finds that the third part of the paragraph 4(a) of the Policy is therefore satisfied. 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 names and be transferred to the Complainant.
Haig Oghigian
Sole Panelist
Date: August 6, 2019
Full & Egal Universal Law Academy