The Complainant is Accenture Global Services Limited, Ireland, represented by McDermott Will & Emery LLP, United States of America (“United States”).
The Respondent is Michael Hannart, Belgium. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 29, 2020. On May 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 1, 2020, 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 June 8, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same date, the Center sent an email communication to the Parties in English and French regarding the language of the proceeding. The Complainant filed an amended Complaint on June 9, 2020 and requested that English be the language of the proceeding. 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 of the Complaint, and the proceedings commenced on June 24, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 14, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 21, 2020. The Center appointed Benjamin Fontaine as the sole panelist in this matter on August 20, 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 Background The Complainant is the company Accenture, specialized in business strategy. For the purpose of the Complaint, the Complainant relies on, among other, the following trademark registrations (Annex D to the Complaint): - United States trademark registration No. 3,091,811 ACCENTURE in classes 9, 16, 35, 36, 37, 41, and 42, registered on May 16, 2006. - United States trademark registration No. 2,665,373 ACCENTURE in classes 9, 16, 35, 36, 37, 41, and 42, registered on December 24, 2002. - United States trademark registration No. 3,340,780 ACCENTURE in classes 6, 8, 9, 14, 16, 18, 20, 21, 24, and 28, registered on November 20, 2007. The disputed domain name The disputed domain name resolved to a parked page hosted by Amen.fr and the Panel has noticed that this webpage is not active anymore. According to evidence filed by the Complainant, the disputed domain name has been used to send emails purporting to be from the Complainant’s Managing Director. 5. Parties’ Contentions A. Complainant I. As regards the language of the proceeding On June 9, 2020, the Complainant provided arguments in support of its contentions to have English be the language of proceedings. The Complainant argues that the Respondent has registered a domain name that wholly incorporates Complainant’s English-language company name and trademark, i.e., Accenture (an Irish company). Moreover, there is no equivalent French (or other foreign language) translation of the disputed domain name, including the English-language generic Top-Level Domain (“gTLD”) “.com”. Second, allowing the dispute to proceed in French would arguably give the Respondent an advantage by forcing the Complainant to incur additional costs and expenses in seeking local assistance in France for handling the dispute related to the disputed domain name that is comprised of an English-language trademark coupled with a descriptive English term. II. As regards the substance The arguments of the Complainant on the three elements of the Policy can be summarized as follows: First, the Complainant claims that the disputed domain name is confusingly similar to its trademarks as the sole difference is the addition of “eservices” followed by a hyphen. The Complainant further claims that ACCENTURE is distinctive and famous, referring to rankings as well as previous UDRP decisions where the trademark has been found as being extensively used and well known. Second, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name and it appears that it has chosen to use the Complainant’s famous ACCENTURE trademark in its disputed domain name to create a direct affiliation. Rather, the Respondent is not using the disputed domain name for any purpose. On the contrary, the disputed domain name resolves to a parked page displaying phrases in French such as “Are you interested in this domain name”. Moreover, the Respondent’s failure to use the disputed domain name to provide a bona fide offering of goods and services confirms that it does not have a right or legitimate interest in the disputed domain name, particularly since the Complainant has proven its rights in the marks at issue. Third, on the issue of bad faith, the Complainant has referred to the fact that given its worldwide reputation and the ubiquitous presence of the ACCENTURE marks on the Internet, and given the Respondent’s fraudulent activities in association with the disputed domain name and the ACCENTURE company name, it is clear that the Respondent was aware of the ACCENTURE marks long prior to registering the disputed domain name. Moreover, the Respondent has held the disputed domain name for some months and has not used it for any legitimate purpose. The Complaint has furthermore referred to the doctrine of bad faith passive holding, finally adding that the Respondent has used an email address associated with the disputed domain name to attempt to pose as the Complainant and perpetuate a financial fraud. Finally, according to the Complainant, the Respondent has demonstrated an awareness of the Complainant’s trademark and a pattern of bad faith conduct, as the Respondent is also the registrant of the domain name The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings I. As regards the language of the proceeding The Panel is seized with a request that the language of the present proceedings be English rather than French, even though French is the language of the registration agreement for the disputed domain name. The Panel has the possibility to opt for a language of the proceeding other than the language defined in paragraph 11 of the Rules if it deems appropriate, provided that the Respondent apparently understands the language of the Complaint, or at least has had the opportunity to challenge this choice and has not done so, and that the choice of the language of the registration agreement would unfairly disadvantage the Complainant, in particular due to translation constraints (see section 4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In this case, even though the Respondent is from Belgium and may rather understand French than English, the Respondent has not challenged the Complainant’s arguments. Besides, the adjoining of the Complainant’s trademark ACCENTURE with an English expression, “eservice”, suggests that the Respondent is familiar with the English language. In view of these circumstances, the Panel grants the request of the Complainant that the language of the present proceedings be English. II. As regards the substance Paragraph 4(a) of the Policy requires that the Complainant prove all of the following three elements in order to be successful in these proceedings: (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 was registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant, under the first requirement of paragraph 4(a) of the Policy, needs to establish that the disputed domain name is confusingly similar to a trademark or a service mark in which it has rights. The Complainant owns several trademark registrations for the mark ACCENTURE, which is the main element of the disputed domain name. Indeed, as correctly pointed out by the Complainant, previous UDRP decisions have already found that the addition of descriptive terms such as “eservices” or a hyphen does not prevent a finding of confusing similarity (see Accenture Global Services Limited v. Valentin Petit,WIPO Case No. D2020-0348; CIT Group Inc. v. Don Del,WIPO Case No. D2010-0522). Therefore, the first element of the Policy is satisfied. B. Rights or Legitimate Interests Under the Policy, a complainant is required 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 carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. In this case, the Complainant has sufficiently argued that the Respondent is not commonly known by the disputed domain name, and has not been authorized by the Complainant to register and use the disputed domain name. Accordingly and absent specific allegations of the Respondent, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith In order to prevail under the third element of paragraph 4(a) of the Policy, the Complainant must demonstrate that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists a number of circumstances, which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. These are: (i) circumstances indicating that [a respondent has] registered or acquired a disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name to the complainant or to a competitor of the complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the disputed domain name; or (ii) [the respondent has] registered the disputed domain name in order to prevent the complainant from reflecting the complainant’s trademark or service mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or (iii) [the respondent has] registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location. Regarding, first, the registration of the disputed domain name in bad faith, the Panel has no doubt that the Respondent had specifically in mind the Complainant’s trademark ACCENTURE when it registered the disputed domain name. It is apparent from the evidence in the file that the business initiated by the Irish company is extremely successful. Indeed, ACCENTURE has been recognized in Interbrand’s Best Global Brands Report as one of the most successful brands and the Complainant has shown that its mark has been extremely advertised. Moreover, the addition of the word “eservice” is not sufficient to counteract the strong presumption of registration in bad faith, as it is a descriptive term. On the contrary, it is likely to be perceived by Internet users as a sub-domain name of the Complainant for its exclusive online services. Secondly, with respect to the use in bad faith, the Panel considers that the circumstances of the use of the disputed domain name in this case mirrors those which are outlined in section 3.4 of the WIPO Overview 3.0, namely that “use of a domain name for purposes other than to host a website may constitute bad faith. Such purposes include sending email, phishing, identity theft, or malware distribution. . .Many such cases involve the respondent’s use of the domain name to send deceptive emails, e.g., to obtain sensitive or confidential personal information from prospective job applicants, or to solicit payment of fraudulent invoices by the complainant’s actual or prospective customers”. In the present proceeding, the Complainant has provided evidence that the Respondent has used the disputed domain name to send emails purporting to be from the Complainant’s Managing Director and attempting to fraudulently induce various clients and companies to establish accounts with the Complainant. Accordingly, the third criteria element set out in paragraph 4(a) of the Policy is also 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 name, Benjamin Fontaine
Sole Panelist
Date: September 3, 2020
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