The Complainant is Accenture Global Services Limited, Ireland, represented by McDermott Will & Emery LLP, United States of America.
The Respondent is DotMedia Limited, Hong Kong, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 22, 2020. On June 23, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 24, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 the Respondent of the Complaint and the proceedings commenced on July 1, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 21, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 22, 2020. The Center appointed Michael D. Cover as the sole panelist in this matter on July 31, 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 an international business that provides a broad range of services and solutions in strategy, consulting, digital, technology and operations under the name ACCENTURE and is the proprietor of the ACCENTURE trademark and other trademarks incorporating the name ACCENTURE and also the company name “Accenture”. The Complainant’s registered business address is 3 Grand Canal Street, Upper Canal Street, Dublin 4, Ireland. The Complainant has been using the trademark ACCENTURE since 2001. The Complainant is the proprietor of United States trademark registration No. 3,091,811 ACCENTURE which was filed on October 6, 2000 and registered on May 16, 2006. The Complainant is the proprietor of other registered trademarks in the United States for the trademark ACCENTURE, as well as registrations for the ACCENTURE and ACCENTURE (& design) in more than 140 countries, owning more than 1,000 registrations for the trademarks ACCENTURE and ACCENTURE (& design). The Complainant has supported the business carried out under the trademark ACCENTURE with advertising of over USD 60 million for each of the last 10 years. The registrant is listed in the Domain Name WhoIs records as DotMedia Limited. The Disputed Domain Name was registered on February 19, 2020. The Disputed Domain Name has been resolving to a website displaying pornography according to the evidence provided by the Complainant. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar to a trademark in which the Complainant has rights The Complainant submits that it enjoys strong worldwide rights and recognition of its ACCENTURE trademark, having used the ACCENTURE trademark since 2001. The Complainant submits that it has developed substantial goodwill in its ACCENTURE name and trademarks and its official domain name, The Complainant sets out what it describes as a representative sampling of the Complainant’s global advertising featuring its ACCENTURE trademarks in Annex H to the Complaint. The Complainant submits that the ACCENTURE trademark has been recognized as a leading global brand, including in Interbrand’s “Best Global Brands Report”since 2002. The Complainant also notes that the Complainant has been recognized in the Fortune 500, which ranks the world’s largest companies, and has received numerous awards for its business, products, and services provided under the ACCENTURE trademarks, which it sets out at paragraph 24 of the Complainant. The Complainant sets out various other activities that the Complainant has undertaken to support the business carried on under the ACCENTURE trademark. The Complainant concludes that, as a result of the extensive use and promotion of the ACCENTURE trademarks, such trademarks have become distinctive and famous globally since long prior to the date on which the Respondent registered the Disputed Domain Name. The Respondent submits that the Disputed Domain Name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights. The Complainant submits that the Disputed Domain Name is confusingly similar to its ACCENTURE trademarks and that the Disputed Domain Name immediately should be transferred to the Complainant. The Complainant notes that the Disputed Domain Name was registered in February 2020, nearly 18 years after the Complainant first registered its ACCENTURE trademark in the United States. The Complainant then goes on to submit that the ACCENTURE trademark is distinctive and famous, it has been extensively used and is well known. The Complainant also submits that the ACCENTURE trademark consists of a coined term and therefore should be afforded a wide scope protection. The Complainant continues that the addition of a generic Top-Level Domain (“gTLD”), such as “.com” is insufficient to distinguish the Disputed Domain Name from the Complainant’s trademark and cites in support PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS COMPUTER INDUSTRY (a/k/a EMS),WIPO Case No. D2003-0696. In addition, the Complainant states that adding a descriptive term to a trademark in a domain name fails to negate confusing similarity, especially when the descriptive term in question, “careers”, appears to refer to career opportunities or the hiring department of the Complainant. The Complainant concludes that the addition of the word “careers” and the letters “cee” does nothing to reduce the confusing similarity between the Disputed Domain Name and the Complainant’s trademark ACCENTURE and that, as such, Internet users are very likely to be confused as to whether an association between the Disputed Domain Name and the Complainant. Rights or Legitimate Interests The Complainant notes that a respondent can demonstrate a legitimate interest in a domain name by proving one of the elements in paragraph 4(c) of the Policy and submits that, in this case, the Respondent can demonstrate none of these criteria and, therefore, has no rights or legitimate interests in the Disputed Domain Name. The Complainant goes on to note that the Complainant’s ACCENTURE trademark is not a generic or descriptive term in which the Respondent might have an interest, not least as the Complainant’s ACCENTURE trademarks are globally famous and have an acquired secondary meaning through the Complainant’s substantial, continuous, and exclusive use of the Complainant’s trademarks in connection with the Complainant’s goods and services. The Respondent then states that the Respondent is neither affiliated with nor has it been licensed or permitted to use the Complainant’s ACCENTURE trademarks or any domain names incorporating the ACCENTURE trademarks. The Complainant submits that the interaction between paragraph 4(a)(ii) of the Policy and the case the Complainant cites, CareerBuilder, LLC v. Stephen Baker,WIPO Case No. D2005-0251, is such that a statement that a respondent is not licensed or otherwise authorized to use a dispute domain name constitutes prima facie proof for a complainant that a respondent lacks any rights or legitimate interests in a disputed domain name. The Complainant continues that the Respondent is not commonly known by the Disputed Domain Name and nor was it known as such before the registration of the Disputed Domain Name. The Complainant submits that the Respondent has chosen to use the Complainant’s famous ACCENTURE trademark to misleadingly create a direct affiliation with the Complainant and its business and this is not making a legitimate noncommercial or fair use of the Disputed Domain Name. The Complainant states that the Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services, because the Respondent appears to be using the Disputed Domain Name to resolve to a website displaying pornography. The Complainant cites Boehringer Ingelheim Pharma GmbH & Co. KG. v. Denis Stravinsky, WIPO Case No. D2019-1282 in support of the proposition that the use of a domain name containing a third party trademark to resolve to pornography cannot constitute a bona fide offering of goods or services. The Complainant also submits that the use by the Respondent of the Disputed Domain Name to divert to a website displaying pornographic damages the value and reputation of the ACCENTURE trademark and cannot be considered either a bona fide offering of goods or services or as a legitimate noncommercial or fair use of the Disputed Domain Name. The Complainant notes that the burden of production shifts to the Respondent, the Complainant having established its rights in its ACCENTURE trademark. The Complainant summarises that the Respondent is not making a legitimate, noncommercial or fair use of the Disputed Domain Name and that it appears that the Respondent has chosen the Disputed Domain Name to trade off and potentially damage the reputation and goodwill associated with the Complainant’s ACCENTURE trademark, to cause confusion amongst Internet users and the Complainant’s customers, and to prevent the Complainant from owning the Disputed Domain Name. The Complainant concludes that it is clear that the Respondent has no legitimate interest in the Disputed Domain Name. Registered and Used in Bad Faith The Complainant notes that paragraph 4(a)(iii) of the Policy establishes bad faith registration and use of a domain name can be established by showing circumstances indicating that the Respondent is using the Disputed Domain Name to intentionally attempt 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 and references paragraph 4(b)(iv) in that connection. The Complainant submits that the Respondent had constructive notice that the ACCENTURE trademark was a registered in the United States and many other jurisdictions worldwide and also that, given the Complainant’s worldwide reputation and presence, the Respondent was or should have been aware of the ACCENTURE trademarks prior to registering the Disputed Domain Name. The Complainant cites in support Caesars World, Inc. v. Forum LLC,WIPO Case No. D2005-0517. The Complainant continues that the Respondent’s use of the Disputed Domain Name to redirect Internet users to pornographic content is in bad faith and indicates that the Respondent registered Dispute Domain Name with the intent to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s ACCENTURE trademark. The Complainant also relies on the case of Eli Lilly and Company v. Domain Magic, LLC,WIPO Case No. D2007-0144, which, submits the Complainant, confirms that UDRP panels have long recognized that the use of another’s trademark in a domain name to divert consumers to a pornographic website is evidence of bad faith, regardless of the registrant’s motivation. The Complainant also submits that the use of its famous trademark in relation to pornography only serves to tarnish the value and reputation of the trademark ACCENTURE. The Complainant concludes that the well-known status of the Complainant’s ACCENTURE trademarks and the registration and use of the domain name Remedy Requested The Complainant requests that the Panel order that the Disputed Domain Name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Complainant must demonstrate on the balance of probabilities that the Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name, and that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel accepts that the Complainant has established registered and unregistered rights in its ACCENTURE trademarks. The Complainant first registered its ACCENTURE trademark in the United States as early as 2006 (filed in 2000) and has undertaken significant marketing support for the business carried on under the ACCENTURE trademarks, which commenced in 2001. It is a reasonable inference that the revenue generated as a consequence would have been very substantial. The Panel also accepts that the Disputed Domain Name is confusingly similar to the Complainant’s trademark ACCENTURE, in which the Complainant has rights. The Disputed Domain Name incorporates the Complainant’s trademark ACCENTURE in its entirety as part of the element “accentureceecareers”. It is well-established that the addition of the gTLD “.com” does not avoid a finding that a disputed domain name is confusingly similar to a complainant’s trademark, and the Panel also accepts that the addition of the elements “cee” and “careers” does not avoid a finding of confusing similarity. The Panel accordingly finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark ACCENTURE in which the Complainant has rights and the provisions of paragraph 4(a)(i) of the Policy have been met. B. Rights or Legitimate Interests The Panel accepts that the Respondent has no rights or legitimate interests in the Disputed Domain Name. There is no evidence that the Complainant has licensed or authorized the Respondent to use its ACCENTURE trademark nor that the Disputed Domain Name has been used for a bona fide offering of goods or services or for noncommercial fair use. The Panel hence decides that the burden of production then passes to the Respondent, the Complainant having made out a prima facie case. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.), section 2.1. The Respondent has failed to satisfy this burden, including by failing to respond to the Complaint, despite being given the opportunity so to do. The Respondent has not demonstrated use or demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or service, without intent for commercial gain or to misleadingly divert consumers or to tarnish the ACCENTURE trademark of the Complainant. Also, the Respondent has not shown that it has been commonly known by the Disputed Domain Name. The Panel finds as a fact on the balance of probabilities that such use that has taken place of the Disputed Domain Name by the Respondent was in resolving to a website displaying pornography, which cannot be said to come under any of the points set out in paragraph 4(c) of the Policy. The Panel therefore accordingly finds that the provisions of paragraph 4(a)(ii) of the Policy have been met. C. Registered and Used in Bad Faith The Panel accepts that the Disputed Domain Name has been registered and is being used in bad faith. It is a reasonable inference that the Respondent would have been aware of the well-known trademark ACCENTURE of the Complainant when the Respondent registered the Disputed Domain Name, which was registered well after the registration and use of the ACCENTURE trademark. In addition, a simple trademark search or Google search would have found the ACCENTURE trademark and the business associated with it. The Complainant has not authorized the Respondent to use or register the Disputed Domain Name, which contains the Complainant’s well-known trademark ACCENTURE. The Panel notes that the Disputed Domain Name has been resolving to pornographic content. The Panel consequently finds that the Respondent has registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor and, by using the Disputed Domain Name, the Respondent has intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark ACCENTURE as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. The Panel therefore finds that the provisions of paragraph 4(a)(iii) of the Policy have been met. 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 Michael D. Cover
Sole Panelist
Date: August 12, 2020
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