The Complainant is Accenture Global Services Limited, Ireland, represented by McDermott Will & Emery LLP, United States of America (“United States”).
The Respondent is Florian DEJOYE, France. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2020. On August 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 13, 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 August 18, 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 in English on August 21, 2020. The Center sent an email communication to the Parties in French and English on August 18, 2020, regarding the language of the proceeding. On August 21, 2020, the Complainant 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 in French and English of the amended Complaint, and the proceedings commenced on August 28, 2020. The Center received an email in French from an individual claiming to be the Respondent on September 1, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 17, 2020. The Respondent did not submit any formal response. Accordingly, the Center informed the Parties on September 18, 2020 that it would proceed to Panel Appointment. The Center appointed Matthew Kennedy as the sole panelist in this matter on October 1, 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 a provider of management consulting and other services and has used the ACCENTURE mark since 2001. The Complainant holds multiple ACCENTURE trademark registrations in multiple jurisdictions, including United States trademark registration number 3,091,811 for ACCENTURE, registered on May 16, 2006, with a priority date of October 6, 2000, specifying goods and services in classes 9, 16, 35, 36, 37, 41 and 42. That trademark registration remains current. The Complainant also registered the domain name The Respondent is an individual with a contact address in France. The disputed domain name was registered on July 13, 2020. It formerly resolved to a parking page but no longer resolves to any active website. According to evidence provided by the Complainant, the disputed domain name is used in an email address. An email sent from that address impersonated the managing director of the Complainant in an attempt to obtain goods on credit by fraud. The use of the disputed domain name bears a strong similarity to the facts in another recent case under the Policy, in which a domain name incorporating the ACCENTURE mark was used in an email address in an attempt fraudulently to acquire products from a third party. See Accenture Global Services Limited v Valentin Petit,WIPO Case No. D2020-0348. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s ACCENTURE mark. The Respondent has no rights or legitimate interests in respect of the disputed domain name. “Accenture” is not a generic or descriptive term in which the Respondent might have an interest. The Respondent is neither affiliated with, nor has it been licensed or permitted to use the Complainant’s ACCENTURE mark or any domain names incorporating the ACCENTURE mark. The disputed domain name was registered and is being used in bad faith. Given the Complainant’s worldwide reputation and the ubiquitous presence of the ACCENTURE mark on the Internet, and following the Respondent’s fraudulent activities in association with the Accenture company name, it is clear that the Respondent was aware of the ACCENTURE mark long prior to registering the disputed domain name. The Respondent’s use of the disputed domain name with a corresponding email address to pose as the Complainant and to perpetuate a financial fraud/phishing scam constitutes bad faith. B. Respondent The Center received an informal email in French, which was apparently sent from the Respondent via an email address other than that with which the disputed domain name was registered. Besides such informal email acknowledging receipt of the written notice of the amended Complaint and requesting more information, 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 provides that “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.” The Registrar confirmed that the Registration Agreement for the disputed domain name is in French. The Complainant requests that the language of the proceeding be English. Its arguments are that the disputed domain name wholly incorporates an English-language company name and trademark which has no French equivalent, and that translation of the amended Complaint into French would force the Complainant to incur additional costs and expenses. Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293. The Panel observes that in this proceeding the Complaint was filed in English. The disputed domain name is used in connection with an email address, from which an email was sent impersonating the English-speaking managing director of the Complainant. This suggests that the Respondent understands English. In any case, despite the Center having sent an email regarding the language of the proceeding to the Parties in French and English, the Respondent did not comment on the language of the proceeding. Therefore, the Panel considers that requiring the Complainant to translate the amended Complaint into French would create an undue burden and delay, whereas proceeding in English will not cause unfairness to either Party. Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. Nonetheless, the Panel has considered the informal email received in French. The Panel would have accepted a formal Response in French, but none was filed. 6.2 Substantive Issues Paragraph 4(a) of the Policy provides that a complainant must prove each of the following 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. A. Identical or Confusingly Similar Based on the evidence submitted, the Panel finds that the Complainant has rights in the ACCENTURE mark. The disputed domain name wholly incorporates the ACCENTURE mark as its initial element. It also includes the element “-be”, but this does not prevent a finding of confusing similarity with the ACCENTURE mark. The mark remains clearly recognizable within the disputed domain name. The only other element in the disputed domain name is the generic Top-Level Domain (“gTLD”) “.com”. As a technical requirement of registration, this element is generally disregarded in the comparison between a domain name and a trademark for the purposes of the first element of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11. Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. 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] of the dispute, [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. The Complainant states that the Respondent is neither affiliated with, nor has it been licensed or permitted to use, the Complainant’s ACCENTURE mark or any domain names incorporating the ACCENTURE mark. The disputed domain name formerly resolved to a parking page but no longer resolves to any active website. There is evidence that the disputed domain name has been used in connection with an email address from which an email was sent impersonating the Complainant’s managing director in an attempt to obtain goods on credit. The Panel does not consider any of these uses to be a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy. Nor are they a legitimate noncommercial or fair use of the disputed domain name within the meaning of paragraph 4(c)(iii) of the Policy. The Respondent’s name is listed in the Registrar’s WhoIs database as “Florian DEJOYE”, not “accenture‑be”. There is no evidence that the Respondent has been commonly known by the disputed domain name within the meaning of paragraph 4(c)(ii) of the Policy. In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut that prima facie case because he did not respond to the Complainant’s contentions. Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that certain circumstances shall be evidence of the registration and use of a domain name in bad faith but these circumstances are not exhaustive. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. See Match.com, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230. With respect to registration, the disputed domain name was registered in 2020, many years after the registration of the Complainant’s ACCENTURE trademark. ACCENTURE is a coined word with no meaning other than as a reference to the Complainant, its goods and services, and its trademark. The disputed domain name wholly incorporates the ACCENTURE trademark in combination with the element “-be” (an abbreviation for Belgium), creating the impression that it is associated with the Belgian office of the Complainant. Indeed, the evidence shows that within one month of its registration, the disputed domain name was used to send an email that included the name, address, and contact details of the Complainant’s Belgian office. This evidence gives the Panel reason to find that the Respondent was aware of the Complainant and its ACCENTURE trademark at the time of registration of the disputed domain name. With respect to use, the disputed domain name formerly resolved to a parking page but no longer resolves to any active website. It is used in connection with an email address. An email sent from that address impersonated the managing director of the Complainant in an attempt to perpetrate fraud within one month of registration of the disputed domain name. The Respondent provides no explanation of any other actual or potential use of the disputed domain name. In these circumstances, the Panel finds that the Respondent’s primary motive in relation to the registration and use of the disputed domain name was to capitalize on, or otherwise take advantage of, the Complainant’s trademark rights, by creating a likelihood of confusion with the Complainant’s mark with the intent to unlawfully profit therefrom. See WIPO Overview 3.0, section 3.4; and Arla Foods Amba v. Michael Guthrie, M. Guthrie Building Solutions,WIPO Case No. D2016-2213. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy. 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 Matthew Kennedy
Sole Panelist
Date: October 12, 2020
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