The Complainant is Accenture Global Services Limited, Ireland, represented by McDermott Will & Emery LLP, United States of America (“United States”).
The Respondent is Registration Private, Domains By Proxy, LLC, United States / Moniker Privacy Services, United States / Zhichao Yang, China. 2. The Domain Names and Registrars
The disputed domain name The Complaint involving the disputed domain name The Center verified that the Complaint together with the amended Complaints 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 August 14, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 3, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 4, 2020. The Center appointed Fabrice Bircker as the sole panelist in this matter on September 22, 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 with offices and operations in more than 200 cities and 56 countries, that provides a broad range of services and solutions in strategy, management consulting, digital, technology and operations under the name ACCENTURE. The Complainant has been using the mark ACCENTURE for almost 20 years. The Complainant is the owner of many trademarks constituted with the ACCENTURE denomination and protected worldwide, such as: - United States trademark registration No. 3091811 for ACCENTURE in classes 9, 16, 35, 36, 37, 41, and 42, filed on October 26, 2000 and registered on May 16, 2006; - European Union Trade Mark registration No. 1958370 for ACCENTURE and device in classes 9, 16, 35, 36, 37, 39, 41, and 42, filed on November 16, 2000 and registered on August 14, 2002; - Indian trademark registration No. 1240312 for ACCENTURE in classes 35, 36, 37, 41, and 42, filed on September 29, 2003 and registered on December 17, 2012. Very little is known about the Respondent, except that it is located in China. The disputed domain names They both resolve to a website displaying sponsored links in the field of human resources. 5. Parties’ Contentions A. Complainant The Complainant’s contentions may be summarized as follows: Identical or Confusingly Similar The Complainant notably states that since January 2001 it has been extensively using the trademarks ACCENTURE, which are registered in many jurisdictions worldwide. It also contends that as a result of their extensive use and promotion, the ACCENTURE trademarks have become famous globally, and have enjoyed such notoriety since long prior to the date on which the Respondent registered the disputed domain names. The Complainant argues that the disputed domain names are confusingly similar to the ACCENTURE trademarks because there are only minor differences between the rights in comparison. In this respect, it notably contends that generic Top-Level Domain (“gTLD”) is completely without legal significance when comparing the signs. The Complainant adds that the misspellings of the ACCENTURE trademark comprising the disputed domain names constitutes “typosquatting,” which is generally insufficient to materially distinguish a domain name from another’s trademark. The Complainant also puts forward that adding a descriptive term to a trademark in a domain name fails to negate confusing similarity, especially when the descriptive term suggests an affiliation with the Complainant. Rights or Legitimate Interests The Complainant states that its ACCENTURE mark is not a generic or descriptive term in which the Respondent might have an interest and contends that, on the contrary, the ACCENTURE trademarks are globally famous and have acquired secondary meaning through their substantial, continuous, and exclusive use. The Complainant asserts that the Respondent is neither affiliated with, nor has it been licensed or permitted to use its ACCENTURE trademarks or any domain names incorporating them. The Complainant claims that the Respondent is identified as Zhichao Yang and therefore is not commonly known by either of the disputed domain names. Besides the Complainant puts forward that the Respondent has already been found by another UDRP panel to have registered the domain names The Complainant adds that the Respondent has chosen to use the famous ACCENTURE trademark in the disputed domain names to create a direct affiliation with the Complainant and its business. The Complainant also contends that the Respondent’s use of the disputed domain names to redirect Internet users to websites displaying only sponsored links does not qualify as a bona fide offering of goods and services, and it is presumed that the Respondent is receiving compensation for each misdirected user. Registered and Used in Bad Faith First, the Complainant claims that the Respondent had constructive notice that the ACCENTURE mark was a registered trademark in the United States and in many other jurisdictions worldwide. Then, the Complainant asserts that given its worldwide reputation and the ubiquitous presence of the ACCENTURE trademarks on the Internet, and given the Respondent’s registration of domain names that directly refer to its Federal Services business division, it is clear that the Respondent was aware of the ACCENTURE trademarks long prior to registering the disputed domain names. The Complainant adds that the Respondent has demonstrated an awareness of the ACCENTURE trademarks and a pattern of bad faith conduct, as it was previously the registrant of the Finally, the Complainant contends that the Respondent’s use of the disputed domain names to redirect Internet users to commercial websites through various sponsored click-through links constitutes bad faith and indicates that the Respondent registered and is using the disputed domain names with the intent to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s ACCENTURE trademarks as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that for obtaining the transfer or the cancellation of the disputed domain name, the Complainant must establish each of the following three elements: (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 has been registered and is being used in bad faith. Besides, paragraph 15(a) of the Rules provides that “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraphs 10(b) and 10(d) of the Rules also provide that “[i]n all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case” and that “[t]he Panel shall determine the admissibility, relevance, materiality and weight of the evidence”. Besides, the Respondent’s failure to reply to the Complainant’s contentions does not automatically result in a decision in favor of the Complainant, although the Panel is entitled to draw appropriate inferences therefrom, in accordance with paragraph 14(b) of the Rules (see section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). Taking the foregoing provisions into consideration the Panel finds as follows. A. Identical or Confusingly Similar Pursuant to paragraph 4(a)(i) of the Policy, the Complainant must first establish rights in a trademark or service mark and secondly establish that the disputed domain names are identical or confusingly similar to its trademark. Annex A to the Complaint shows trademarks registrations for ACCENTURE in the name of the Complainant, in particular those detailed in section 4. above. Turning to whether the disputed domain names - the term “acccenture” or “acceture”, - followed by the denomination “federal” and by the gTLD “.com”. There is a consensus view among UDRP panels that: - a domain name containing a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name (see WIPO Overview 3.0, section 1.9), - 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 (see WIPO Overview 3.0, section 1.8). - gTLDs may be ignored for the purpose of assessing the confusing similarity, because they only play a technical function. In this case, the Panel considers that the addition of the extra letter “c” in the Besides, the term “federal” is a dictionary term and merely descriptive. Therefore, its presence in the disputed domain names is not of nature to prevent a finding of confusing similarity. In light of the above, the Panel considers that the ACCENTURE trademark remains recognizable within the disputed domain names, which are therefore confusingly similar to a trademark in which the Complainant has rights. Consequently, the first element under the Policy set for by paragraph 4(a)(i) is fulfilled. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy: (i) before any notice to [the Respondent], [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or (ii) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or (iii) [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. While the overall burden of proof in UDRP proceedings is on the complainant, UDRP 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 (see WIPO Overview 3.0, section 2.1). In the present proceeding, the Complainant contends that it has not given its consent for the Respondent to use its ACCENTURE registered trademarks in domain names registrations or in any other manner. Besides, there is nothing in the record of the case likely to indicate that the Respondent may be commonly known by the disputed domain names. Furthermore, the disputed domain names resolve to parking pages displaying sponsored links. Some of the links are seemingly generated based on the value of the Complainant’s mark since they promote activities in which the Complainant intervenes (such as human resources software). Such a commercial use that unduly capitalizes on the value of a third party’s trademark, cannot create rights or legitimate interests in the disputed domain names for the purposes of the Policy (e.g. Philip Morris USA Inc. v. Pan Shuai Lou,WIPO Case No. D2019-0389 or Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright,WIPO Case No. D2007-0267). Accordingly, the Panel does not find that the Respondent’s use of the disputed domain names is in connection with a bona fide offering of goods or services within the terms of paragraph 4(c)(i) of the Policy, or with a legitimate noncommercial or fair use with the terms of paragraph 4(c)(iii) of the Policy. In view of all the above, the Panel finds that the Complainant has discharged its burden of proof that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The burden of production now shifts to the Respondent to show that it does have some rights or legitimate interests. The Respondent, which has not replied to the Complainant’s contentions, has not come forward with any explanation or evidence that demonstrates any rights or legitimate interests in the disputed domain names. Based on the above, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain names and accordingly that the second element in paragraph 4(a) of the Policy is satisfied. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and is using the disputed domain name in bad faith. In the present case, it appears that: - the ACCENTURE trademarks predate the registration of the disputed domain names of almost 20 years, - the Complainant has communicated a large volume of evidence showing that the ACCENTURE trademarks are intensively used worldwide and enjoy considerable reputation and fame (for instance, the ACCENTURE brand is continuously ranked in BrandZ – Top 100 Rankings since 2006) and others UDRP panels have already recognized the well-known feature of this brand (e.g. Accenture Global Services Limited v. Moniker Privacy Services / Whois Agent, Domain Protection Services, Inc. / Zhichao Yang,WIPO Case No. D2019-2787). - the presence of the term “federal” as part of the disputed domain names directly refers to the Complainant’s Federal Services business division, - the Respondent has already been found to have registered in bad faith other domain names targeting the ACCENTURE trademarks (Accenture Global Services Limited v. Moniker Privacy Services / Whois Agent, Domain Protection Services, Inc. / Zhichao Yang,WIPO Case No. D2019-2787). - the disputed domain names are used for commercial gain, as they resolve to a website featuring pay‑per‑click links, - the sponsored links displayed on the website available through the disputed domain names relate to fields of activities where the Complainant intervenes, which is of a nature to create a likelihood of confusion with the Complainant’s ACCENTURE trademarks. These elements clearly show that the Respondent was more than likely aware of the Complainant’s rights when it registered the disputed domain names and that it is using them to attract Internet users to its websites for commercial gain by unduly capitalizing on the reputation and goodwill of the Complainant’s ACCENTURE trademarks. In sum, this case clearly falls within the scope of paragraph 4(b)(iv) of the Policy, namely: “by using the disputed domain name[s], [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.” Consequently, the third element under the Policy set for by paragraph 4(a)(iii) is fulfilled. 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 Fabrice Bircker
Sole Panelist
Date: October 6, 2020
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