The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Name redacted1 . 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2021. On February 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 16, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 5, 2021 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 March 10, 2021. The Center sent an email communication to the parties on March 5, 2021 regarding the language of the proceeding, as the Complaint has been submitted in English and the language of the registration agreement for the Domain Name is French. The Complainant submitted a request for English to be the language of the proceeding on March 8, 2021. The Respondent did not submit any communication regarding 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 in both French and English, and the proceedings commenced on March 12, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 8, 2021. The Center appointed Vincent Denoyelle as the sole panelist in this matter on April 14, 2021. 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. Language of the proceeding Pursuant to paragraph 11(a) of the Rules, “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”. In the present case, the registration agreement is in French. The Complainant submitted a request for English to be the language of the administrative proceeding for the following reasons: Given the possible identity theft situation in the present case, the Respondent’s identity and nationality were unknown to the Complainant. In order to make sure that the Respondent would be able to communicate in this administrative proceeding, the Complainant decided to submit the Complaint in English. Furthermore, the Complainant submitted that since the registration agreement is available both in English and French, the Complainant decided to file the Complaint in English. The Panel finds that the arguments put forward by the Complainant are relevant for the purpose of the Complainant’s request for the administrative proceeding to be in English. In addition, the Panel notes that the structure and language included in the Domain Name are based on the English language and also that the Respondent did not reply to the Complainant’s contentions. In light of these circumstances the Panel finds that it would not be unfair to proceed in a language other than that of the registration agreement and thus the Panel accepts the Complainant’s request for the administrative proceeding to be in English. 4. Factual Background The following facts are based on the submissions in the Complaint and the Annexes to the Complaint. The Complainant is a global hotel operator headquartered in France. The Complainant is the owner of several trade marks for ACCOR and ACCORHOTELS including the following: - International Trade Mark ACCOR No. 1471895, registered on December 24, 2018 and; - European Union Trade Mark ACCORHOTELS No. 010248466, registered on March 20, 2012. The Complainant is also the owner of several domain names reflecting its trade marks. The Domain Name was registered on January 29, 2021 and resolves to the Registrar’s landing page. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to the ACCOR and ACCORHOTELS trade marks in which the Complainant has rights as the Domain Name incorporates the entire ACCOR trade mark with the addition of the generic term “group” with a hyphen and the generic term “hotel” and that such addition to the Domain Name does not prevent the likelihood of confusion between the Domain Name and the Complainant’s trade marks. The Complainant also submits that the Domain Name imitates the trade mark ACCORHOTELS with the mere deletion of the letter “s”. The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant states that the Respondent is neither affiliated with the Complainant in any way nor has the Respondent been licensed or authorized by the Complainant to use and register its trade mark, or to seek registration of any domain name incorporating its trade mark. The Complainant also contends that the circumstances of the case demonstrate an identity theft attempt on the part of the Respondent as the Domain Name registration details misleadingly refer to the Complainant. The Complainant has provided evidence of the significant renown of the ACCOR trade mark, including as recognized by previous panels under the UDRP. In light of the well-known nature of the Complainant’s ACCOR trade mark, the Complainant contends that no actual or contemplated bona fide or legitimate use of the Domain Name could reasonably be claimed. In addition, the Complainant submits that the fact that the Domain Name resolves to the Registrar’s default landing page cannot be considered as a use of the Domain Name in connection with a bona fide offering of goods and services. Finally the Complainant points to the overall circumstances of the case including the DNS setup of the Domain Name (with active MX records) to send emails as circumstances suggesting the Respondent’s intention to use the Domain Name malevolently. The Complainant contends that the Respondent has registered the Domain Name with full knowledge of the Complainant’s trade mark and the Respondent could not plausibly have ignored the reputation of the Complainant’s trade mark ACCOR as it is well-known. The Complainant also alleges that the Respondent is using the Domain Name in bad faith. The Complainant submits that in the absence of any license or permission from the Complainant to use its well-known trade mark, no actual or contemplated bona fide or legitimate use of the Domain Name could reasonably be claimed. The Complainant also points to the Respondent’s alleged identity theft attempt to conclude that the Respondent could not substantiate that it has made, or that it is currently making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain and in order to misleadingly divert consumers, or to tarnish the Complainant’s trade mark. In addition, the Complainant points to the fact that the Domain Name has been set up to allow the sending of emails which constitutes a threat hanging over the Complainant’s head. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to prevail the Complainant must substantiate that the three elements of paragraph 4(a) of the Policy have been met, namely: (i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. In the case of default by a party, as is the case here, paragraph 14(b) of the Rules makes it clear that if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. In the absence of a Response from the Respondent whereby the Respondent did not object to any of the contentions from the Complainant, the Panel will have to base its decision on the basis of the Complaint and supporting Annexes. A. Identical or Confusingly Similar In light of the evidence provided by the Complainant, the Panel is satisfied that the Complainant has substantiated that it holds valid trade mark rights in ACCOR, which is reproduced in its entirety in the Domain Name. The second point that has to be considered is whether the Domain Name is identical or confusingly similar to the trade mark ACCOR in which the Complainant has rights. At the second level, the Domain Name incorporates the Complainant’s ACCOR trade mark in its entirety with the addition of the term “group” with a hyphen and the term “hotel”. The Panel finds that both descriptive terms added and the hyphen do not prevent a finding of confusing similarity between the Complainant’s trade mark and the Domain Name. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”). Then there is the addition of the generic Top-Level-Domain (“gTLD”) “.com”. As is generally accepted, the addition of a gTLD such as “.com” is merely a technical registration requirement and as such is typically disregarded under the first element confusing similarity test. Thus, the Panel finds that the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out relevant circumstances that could demonstrate that a respondent has rights or legitimate interests in a domain name, namely: Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the respondent’s] rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) [the respondent] (as an individual, business, or other organization) ha[s] been commonly known by the domain name, even if [the respondent] ha[s] acquired no trade mark or service mark rights; or (iii) [the respondent] is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. Numerous previous panels have found under the UDRP that once the Complainant makes a prima facie showing that the Respondent does not have rights or legitimate interests in the domain name, the burden of production shifts to the Respondent to rebut the showing by providing evidence of its rights or interests in the domain name. Having reviewed the Complainant’s assertions and evidence, the Panel is satisfied that the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the Domain Name. The Complainant has stated that it does not know the Respondent and that it has not licensed or otherwise authorized the Respondent to make any use of its trade mark ACCOR. There is no indication that the Respondent is commonly known by the Domain Name. Given the significant renown of the Complainant’s trade mark, as previously found by several panels under the UDRP and the words added in the Domain Name, especially ‘hotel’ which precisely targets the Complainant’s core business, it is inconceivable that the Respondent could substantiate any actual or contemplated bona fide or legitimate use of the Domain Name. In addition, the fact that the Respondent decided to deceivingly register the Domain Name in the name of the Complainant, cannot be considered as a legitimate use of the Domain Name. Furthermore, the nature of the Domain Name, comprising the Complainant’s trade mark in its entirety in combination with additional terms, carries a high risk of implied affiliation. See section 2.5.1 of the WIPO Overview 3.0. Thus, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out a number of relevant non-exhaustive circumstances, which can be deemed to constitute evidence of registration and use of a domain name in bad faith, namely: (i) circumstances indicating that [the respondent has] registered or acquired [a disputed] domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the domain name; or (ii) [the respondent has] registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the 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 domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other on-line 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. Given the circumstances described in the Complaint and the documentary evidence provided by the Complainant, the Panel finds that the Domain Name was registered in bad faith. The Domain Name reproduces the exact ACCOR trade mark of the Complainant and this cannot be a coincidence given the overall circumstances of the present case including (i) the renown of the Complainant’s ACCOR trade mark, as substantiated by the Complainant and acknowledged by several previous UDRP panels, (ii) the fact that the Respondent appears to be based in France where the Complainant is headquartered and where its renown is higher than anywhere else, (iii) the fact that the Domain Name was registered relatively recently and many years after the registration of the trade mark ACCOR, (iv) the targeted choice of descriptive terms added to the trade mark ACCOR in the Domain Name especially the term ‘hotel’ which refers to the core business of the Complainant and (v) the choice of the Respondent to deceivingly register the Domain Name in the name of the Complainant. Thus, the Panel finds that the Domain Name was registered in bad faith. As for use of the Domain Name in bad faith, given the circumstances described in the Complaint and the evidence provided by the Complainant, the Panel considers that the Domain Name is used in bad faith. The Domain Name appears to be passively held as it resolves to the Registrar’s default landing page. Passive use itself does not cure the Respondent’s bad faith given the overall circumstances here, specifically the renown of the Complainant’s ACCOR trade mark, especially in the country where the Respondent appears to be based and the Respondent’s default. In addition, the DNS setup of the Domain Name (with active MX records), along with the composition of the Domain Name and the fact that the Respondent decided to deceivingly register the Domain Name in the name of the Complainant, lead the Panel to consider that the Domain Name could be used to deceive Internet users. In these circumstances, the Domain Name constitutes a potential threat hanging over the head of the Complainant. The fact that the Respondent chose not to object to the Complainant’s assertions can only reinforce the Panel’s view that the Domain Name is used in bad faith. Thus, the Panel finds that the Domain Name has been registered and is also being used in bad faith. 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 Domain Name Vincent Denoyelle 1 On the basis of the case file presented to the Panel, it seems that Respondent is not the true holder and registrant of the Domain Name. In light of a potential identity theft, the Panel, therefore, has redacted Respondent’s name from this Decision. However, the Panel has attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the Domain Name, which includes the name of the registrant according to the Registrar’s WhoIs database. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated that Annex 1 to this Decision shall not be published due to the exceptional circumstances of this case. See ASOS plc. v. Name Redacted,WIPO Case No. D2017-1520.
Sole Panelist
Date: April 28, 2021
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