The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States of America (“United States”) / lin yanxiao, China. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 18, 2021. On May 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 20, 2021, 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 May 26, 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 May 27, 2021. 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 May 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 17, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 5, 2021. The Center appointed Dr. Beatrice Onica Jarka as the sole panelist in this matter on July 9, 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. By the Complaint and amended Complaint, the Complainant requests the consolidation of the Respondents under paragraph 10(e) of the Rules since the Respondents, whose identity was initially undisclosed due to the privacy protection, appear to be the same person or to be subject to common control. Paragraph 11 of the Rules provides that, subject to the authority of the Panel, the language of the administrative proceeding shall be the language of the Registration Agreement, unless the Parties have otherwise agreed to proceed in a different language. The Panel finds that the language of the Registration Agreement is English and the Complaint has been properly submitted in English. 4. Factual Background The Complainant is the French entity Accor, a major actor in the field of hotel services worldwide. It operates over 5,100 hotels in more than 110 countries under several brands such as Fairmont, Raffles, Swissôtel, Sofitel, Pullman, Novotel, Grand Mercure and Ibis. It is particularly present in France and in Europe, where it operates over 3,000 hotels. The Complainant owns and operates several hotels under the trademarks ACCOR, ACCORHOTELS and ALL, which are well-known trademarks, protected worldwide in particular in relation to hotels and restaurants services. The Complainant is the owner of the following trademarks registrations: - International Trademark “ACCOR” No. 1471895, registered on December 24, 2018, designating, inter alia, Australia, China, European Union, Russian Federation, United Kingdom and United States, covering services in class 35, 36, 38, 39, 41, 42, 43 and 44; - United States Trademark “ACCORHOTELS” No. 4270310, filed on December 12, 2011, registered on January 8, 2013 and duly renewed, covering services in classes 35, 39 and 43; - European Union Trademark “ACCORHOTELS” No. 010248466, filed on September 8, 2011, registered on March 20, 2012 and covering services in classes 35, 39 and 43; - United States Trademark “ALL” No. 6136529, filed on November 22, 2016, registered on August 25, 2020 and covering services in classes 35 and 41. The disputed domain names The disputed domain names resolve to very similar parking pages displaying mostly similar commercial links related to hotels and booking services. 5. Parties’ Contentions A. Complainant By the Complaint and the amended Complaint, the Complainant asserts: - The disputed domain names entirely reproduce the Complainant trademarks ACCOR and ALL with the adjunction of the generic term “hotel”, which does not prevent any likelihood of confusion, as it corresponds to the Complainant’s field of activity; The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary question By both the Complaint and the amended Complaint, the Complainant requests consolidation of the Respondents under paragraph 10(e) of the Rules since the Respondents, whose identity is undisclosed due to the privacy protection, appear to be the same person or to be subject to common control. According to the Complainant, the spirit of paragraph 10(e) of the Rules is to consolidate multiple domain name disputes when it favors the shared interests of the parties in avoiding unnecessary duplication of time, effort and expenses, and when it reduces the potential for conflicting or inconsistent results arising from multiple proceedings. According to Paragraph 3(c) of the Rules, a complaint may relate to more than one domain name where all the domain names are registered by the same domain name holder. Moreover, panels have frequently held that the Panel’s powers under paragraph 10(e) of the Rules may permit consolidation of multiple domain name disputes, subject to satisfaction of the other requirements of Policy and Rules, in particular, paragraph 10(b) of the Rules. In accordance with those requirements, UDRP panels have typically allowed joinder against multiple respondents who have registered different domain names where, amongst other things, the domain names in question, or the websites to which they resolve, appear to be under common control and consolidation would be fair and equitable to all parties. The onus of establishing that these requirements have been met falls on the party seeking consolidation. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11. On May 26, 2021, the Center confirmed that the Registrant for both disputed domain name is the same, Lin Yanxiao. Considering the confirmation of the Center and paragraph 3(c) of the Rules, this Panel finds that the Complaint was properly introduced for more than one domain name as all the disputed domain names are registered by the same domain name holder and considers that no further analysis under paragraph 10(e) of the Rules should be made. 6.2. On merits A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the ACCOR, ACCORHOTELS and ALL trademarks acquired through use and registration. The disputed domain names are confusingly similar to the ACCOR, ACCORHOTELS and ALL trademark registrations of the Complainant, as they entirely reproduce the Complainant trademarks ACCOR and ALL with the adjunction of the generic term “hotel”. The Panel agrees with the Complainant that the extension “.com” is not to be taken into consideration when examining the identity or similarity between the Complainant’s trademarks and the disputed domain names as it is a functional element. It is well accepted that the first element functions primarily as a standing requirement. In cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. (See WIPO Overview 3.0, section 1.7). Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8). The Panel therefore, finds that the disputed domain names are confusingly similar to the Complainant’s trademarks and the first element under of paragraph 4(a) of the Policy is therefore established. B. Rights or Legitimate Interests In order to establish the second element of the Policy, the Complainant has to show that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes a prima facie showing, the burden of production shifts to the Respondent (see WIPO Overview 3.0, section 2.1). In these proceedings, this Panel finds that the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and such showing has not been rebutted by the Respondent, as it did not reply to the Complainant’s contentions. Accordingly, the Panel finds that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain names. On the contrary, the Respondent’s behavior shows a clear intent to obtain an unfair commercial gain, with a view to misleadingly diverting consumers, as the Respondent reproduced in the disputed domain names the Complainant’s well known trademarks. According to Section 2.5.1 of the WIPO Overview 3.0., the domain names which are identical to the Complainant’s trademarks “carry a high risk of implied affiliation. UDRP panels have largely held that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner.” Here, although the disputed domain names are not strictly identical to the Complainant’s trademarks, their distinctive features lie in the Complainant’s trademarks. Considering also that there is no evidence of the Respondent’s use of the disputed domain names or a name corresponding to the domain names in connection with a bona fide or legitimate offering of goods or services and the Respondent has never been commonly known by the disputed domain name, in the opinion of this Panel, the Complainant has sufficiently demonstrated that the Respondent lacks any rights or legitimate interests in the disputed domain names, and consequently, the second element of paragraph 4(a) of the Policy is therefore established. C. Registered and Used in Bad Faith This Panel considers the circumstances presented in the Complainant’s contentions as documented in the Complaint relevant evidence for the bad faith of the Respondent in registering and using the disputed domain names. The Panel agrees that the redirection of the disputed domain names towards a parking page with commercial links related to the Complainant’s field of activity, likely to generate revenues, evidences an intent to misleadingly divert consumers by taking unfair advantage of the goodwill and reputation of the Complainant’s trademarks ACCOR, ACCORHOTELS and ALL. Moreover, the Panel agrees that it is likely that, at all times, the Respondent was aware that the Complainant and its trademarks enjoyed a substantial reputation worldwide and that the Respondent’s primary motive in registering and using the disputed domain names was to capitalize on or otherwise take advantage of the Complainant’s trademark rights, through the creation of initial interest of confusion with the Complainant's marks as to the source, sponsorship, affiliation, or endorsement of its website. Last, but not least, the Panel agrees that due to the fact that the email servers have been configured on the disputed domain names and thus, there might be a risk that the Respondent is engaged in a phishing scheme. The Respondent is a known cybersquatter that has been the subject of previous UDRP proceedings. All the above circumstances, which were not rebutted by the Respondent, corroborated with the fact that the Respondent is a recognized cybersquatter, demonstrate for this Panel that the disputed domain names were registered and used in bad faith. The Panel therefore finds that the disputed domain names are registered and are being used in bad faith and the third element under paragraph 4(a) of the Policy is therefore established. 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 Beatrice Onica Jarka
- The extension “.com” is not to be taken into consideration when examining the identity or similarity between the Complainant’s trademarks and the disputed domain names as it is a functional element;
- By incorporating the Complainant ACCOR and ALL and the generic term “hotel”, the disputed domain names create a likelihood of confusion with the Complainant’s trademarks, as the public is likely to believe that the disputed domain names are owned by, or affiliated to the Complainant;
- The domain names in dispute are confusingly similar to the trademarks ACCOR, ALL and ACCORHOTELS in which the Complainant has rights, and therefore the condition of Paragraph 4(a)(i) is fulfilled;
- The Respondent is not affiliated with the Complainant in any way and has not been authorized by the Complainant to use or register its trademarks ACCOR, ACCORHOTELS and ALL or to seek registration of any domain names incorporating the aforesaid trademarks;
- The Respondent has no prior rights or legitimate interest in the disputed domain names, as the registration of ACCOR, ACCORHOTELS and ALL trademarks preceded the registration of the disputed domain names for years: the Respondent is not commonly known by the disputed domain names or the names ACCOR, ACCORHOTELS and ALL, in accordance with paragraph 4(c)(ii) of the Policy;
- There is no evidence that the Respondent may be commonly known by the names ACCOR, ALL or ACCORHOTELS;
- The disputed domain names resolve to parking pages displaying commercial links related to hotels and booking services, directly targeting the Complainant’s field of activity;
-The Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain names;
- Furthermore, email servers have been configured on the disputed domain names and thus, there might be a risk that the Respondent is engaged in a phishing scheme, which further proves that the disputed domain names are not used in any type of legitimate business or services;
- Given the Complainant’s goodwill and renown worldwide, and the nature of the disputed domain names which are confusingly similar to the Complainants’ trademarks, it is not possible to conceive a plausible circumstance in which the Respondent could legitimately use the disputed domain names, as it would invariably result in misleading diversion and taking unfair advantage of the Complainant’s rights;
- For all of the above-cited reasons, it is undoubtedly established that the Respondent has no rights or legitimate interests in respect to the domain names in dispute under paragraph 4(a)(ii) of the Policy;
- On the contrary, the direction of the disputed domain names towards a parking page with commercial evidences an intent to misleadingly divert consumers by taking unfair advantage of the goodwill and reputation of the Complainant’s trademarks ACCOR, ACCORHOTELS and ALL;
- There is no doubt in this case that, at all times, the Respondent was aware that the Complainant and its trademarks enjoy a substantial reputation worldwide, including the United States;
- The Respondent used the disputed domain names to direct Internet users to webpages displaying commercial links related to the Complainant’s field of activity, which are likely to generate revenues. Such use constitutes a use in bad faith pursuant to the policy;
- The clear inference to be drawn from the Respondent’s operations is that he is trying to benefit from the fame of the Complainant’s trademarks;
- It is more likely than not, that the Respondent’s primary motive in registering and using the disputed domain names was to capitalize on or otherwise take advantage of the Complainant’s trademark rights, through the creation of initial interest of confusion with the Complainant's marks as to the source, sponsorship, affiliation, or endorsement of its website;
- Moreover, email servers have been configured on the disputed domain names and thus, there might be a risk that the Respondent is engaged in a phishing scheme;
- Therefore, the use of an email address with the disputed domain names presents a significant risk where the Respondent could aim at stealing valuable information such as credit cards from the Complainant’s clients or employees. Such risk has been recognized by prior Panel (Accor SA v. Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyProtect.org / Yogesh Bhardwaj, WIPO Case No. D2017-1225);
- Moreover, it is likely that the Respondent registered the domain names to prevent the Complainant from using their trademarks in the disputed domain names;
- the Respondent is a known cybersquatter that has been the subject of previous UDRP proceedings. B. Respondent
Sole Panelist
Date: July 23, 2021
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