The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Contact Privacy Inc. Customer 1245779012, Canada / MD TAMZEED RABBI, Accor, Bangladesh.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2020. On February 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On the same day, 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 12, 2020 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 17, 2020.
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 February 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 12, 2020. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on March 13, 2020. On March 13, 2020, the Center received an email communication from the Respondent. On March 20, 2020, the Center invited the Parties to explore settlement negotiations. The Center did not receive any request.
The Center appointed Lynda M. Braun as the sole panelist in this matter on April 6, 2020. 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 BackgroundFounded in 1967, the Complainant is a French multinational hospitality company that owns, manages and franchises hotels, resorts and vacation properties. It is the single largest hospitality company in Europe, and the sixth largest worldwide. The Complainant operates in 110 countries, with more than 4,900 hotels, approximately 700,000 rooms, and 280,000 employees worldwide.
The Complainant is the owner of the following trademark registrations for ACCOR:
- European Union Trademark No. 006159248, registered on December 27, 2012, in international classes 9, 16, 35, 36, 39 and 43;
- International Trademark No. 742032, in, inter alia, China, Germany, Egypt, Italy, Russian Federation, Kenya, Japan, Viet Nam, Bulgaria, Algeria, Croatia, and Turkey, registered on August 25, 2000, in international class 38;
- International Trademark No. 480492, in, inter alia, Iceland, Belarus, Algeria, Uzbekistan, Morocco, Kyrgyzstan, Georgia, Antigua and Barbuda, Azerbaijan, Namibia, Syrian Arab Republic, Tajikistan, and Turkmenistan, registered on November 10, 1983, in international classes 16, 39 and 42;
- International Trademark No. 1128307, in, inter alia, Russian Federation, Turkey, Singapore, United States of America, Ghana, Madagascar and China, registered on February 20,2012, in international classes 35 and 43.
The foregoing trademarks will hereinafter collectively be referred to as the “ACCOR Mark”.
The Complainant also owns the domain names
The Disputed Domain Name was registered on October 31, 2019 and it resolves to an inactive error page. The Complainant stated in its Complaint that 10 email servers are configured on the Disputed Domain Name.
On November 1, 2019, the Complainant sent a notification to the Registrar to request that the Disputed Domain Name be put on hold and that the email servers be deactivated. The Registrar did not grant the Complainant’s request. On November 25, 2019, the Complainant sent a cease-and-desist letter to the email of the registrant then found on the WhoIs search results to request that the Disputed Domain Name be transferred to the Complainant. No reply was received despite several reminders sent by the Complainant.
5. Parties’ Contentions A. ComplainantThe following are the Complainant’s contentions:
- the Disputed Domain Name is confusingly similar to the Complainant’s trademark.
- the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
- the Disputed Domain Name was registered and is being used in bad faith.
The Complainant seeks the transfer of the Disputed Domain Name from the Respondent in accordance with paragraph 4(i) of the Policy.
B. RespondentThe Respondent did not formally reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy requires that the Complainant prove the following three elements in order to prevail in this proceeding:
(i) the Disputed Domain Name is identical or confusingly similar to trademarks or service marks 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 was registered and is being used in bad faith.
A. Identical or Confusingly SimilarThis element consists of two parts: first, does the Complainant have rights in a relevant trademark and, second, is the Disputed Domain Name identical or confusingly similar to that trademark. The Panel concludes that the Disputed Domain Name is confusingly similar to the ACCOR Mark.
It is uncontroverted that the Complainant has established rights in the ACCOR Mark based on its many years of use as well as its registered trademarks for the ACCOR Mark in numerous jurisdictions worldwide. The general rule is that “registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive”. See CWI, Inc. v. Domain Administrator c/o Dynadot,
WIPO Case No. D2015-1734. The Respondent has not rebutted this presumption, and therefore the Panel finds that the Complainant has enforceable rights in the ACCOR Mark.
The Disputed Domain Name consists of the ACCOR Mark in its entirety preceded by the descriptive term “career”, followed by the generic Top-Level Domain (“gTLD”) “.com”. It is well established that a domain name that wholly incorporates a trademark may be confusingly similar to that trademark for purposes of the Policy despite the addition of a descriptive term. As stated in section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”.
Finally, the addition of a gTLD such as “.com” in a domain name is technically required. Thus, it is well established that such element may typically be disregarded when assessing whether a domain name is identical or confusingly similar to a trademark. See Proactiva Medio Ambiente, S.A. v. Proactiva,
WIPO Case No. D2012-0182. Thus, the Disputed Domain Name is confusingly similar to the Complainant’s ACCOR Mark.
Accordingly, the first element of paragraph 4(a) of the Policy has been met by the Complainant.
B. Rights or Legitimate InterestsUnder the Policy, a complainant has to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent bears the burden of production to demonstrate rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview 3.0, section 2.1.
There is no evidence in the record suggesting that the Respondent has rights or legitimate interests in the Disputed Domain Name. The Complainant has not authorized, licensed, or otherwise permitted the Respondent to use the Complainant’s ACCOR Mark. The Complainant does not have any business relationship with the Respondent, nor is the Respondent making a legitimate noncommercial or fair use of the Disputed Domain Name. Based on the passive use made of the Disputed Domain Name, the Panel finds that the Respondent is not making a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the Disputed Domain Name. There is also no evidence that the Respondent is commonly known by the Disputed Domain Name or by a name similar to it.
In this case, the Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent has not submitted any substantive arguments or evidence to rebut the Complainant’s prima facie case. As such, the Panel determines that the Respondent does not have rights or legitimate interests in the Disputed Domain Name.
Accordingly, the second element of paragraph 4(a) of the Policy has been met by the Complainant.
C. Registered and Used in Bad FaithThe Panel finds that, based on the record, the Complainant has demonstrated the Respondent’s bad faith registration and use of the Disputed Domain Name pursuant to paragraph 4(b) of the Policy.
First, the Respondent registered and used the Disputed Domain Name in bad faith by creating the false impression that the Complainant owned or was affiliated with the Disputed Domain Name. The Respondent accomplished this by using a Disputed Domain Name that was confusingly similar to the ACCOR Mark.
Second, the Respondent knew or should have known of the Complainant’s rights in its ACCOR Mark when registering the Disputed Domain Name. For one thing, the Complainant’s ACCOR Mark has been considered to be “well known” or“ famous” by previous UDRP Panels. See e.g., Accor v. Liu Xiao Yan,
WIPO Case No. D2019-0355; Accor v. DreamHost, Long Giang,
WIPO Case No. D2014-0196.
Moreover, the Respondent registered the Disputed Domain Name years after the Complainant first used and obtained its trademark registrations for the ACCOR Mark. Based on the use of the ACCOR Mark and the Complainant’s registered trademarks worldwide, it strains credulity to believe that the Respondent had not known of the Complainant or its ACCOR Mark when registering the Disputed Domain Name. See Myer Stores Limited v. Mr. David John Singh,
WIPO Case No. D2001-0763 (“a finding of bad faith may be made where the respondent “knew or should have known” of the registration and/or use of the trademark prior to registering the domain name”). Also, the Disputed Domain Name is almost identical to the subdomain name
Third, the Disputed Domain Name resolves to an inactive page with an error message and no content. See Advance Magazine Publishers Inc. and Les Publications Condé Nast S.A. v. ChinaVogue.com,
WIPO Case No. D2005-0615; Société pour l’Oeuvre et la Mémoire d’Antoine de Saint Exupéry – Succession Saint Exupéry – D’Agay v. Perlegos Properties,
WIPO Case No. D2005-1085. It has long been held in UDRP decisions that the passive holding of a domain name that incorporates a well-known trademark without a legitimate Internet purpose may indicate that the Disputed Domain Name is being used in bad faith under paragraph 4(a)(iii) of the Policy. See Telstra Corporation Limited v. Nuclear Marshmallows,
WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall,
WIPO Case No. D2000-0574.
Accordingly, the third element of paragraph 4(a) of the Policy has been met by the Complainant.
7. DecisionFor 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
Lynda M. Braun
Sole Panelist
Date: April 20, 2020