The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf, Iceland / Andrew Johnson, Nigeria. 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 3, 2021. On June 4, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 4, 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 June 7, 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 June 11, 2021. The Center verified that the Complaint 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 June 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 19, 2021. The Center appointed Tobias Malte Müller as the sole panelist in this matter on August 3, 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. 4. Factual Background The Complainant is a leading global hotel operator founded in 1967 and currently operating more than 5,100 hotels in 110 countries worldwide with more than 753,000 rooms. The Complainant’s group includes notable hotel chains such as Fairmont, Raffles, Swissôtel, Sofitel, Pullman, Novotel, Grand Mercure and Ibis. Accor has strong presence in Africa, started in 2020 with new partnership with Tom Hawksworth Limited, a prominent property, and real estate developer, with the signing of Pullman and MGallery Ikoyi in Nigeria, where the Respondent is located. According to the Registrar’s verification response, the Respondent registered the disputed domain name on March 15, 2021. The language of the registration agreement at the time of registration was English. The Complaint is based amongst others on the following combined trademarks containing the term ACCOR as only verbal element and applied for before the date of registration of the disputed domain name: - French trademark No. 4464429, registered on June 26, 2018, and covering goods and services in classes 36, 36, 38, 39, 41, 42, 43 and 44 - International trademark No. 1471895, registered on December 24, 2018, designating inter alia the European Union, the Organisation Africaine de la Propriété Intellectuelle (“OAPI”), China, the United States, and covering services in classes 35, 36, 38, 39, 41, 42, 43 and 44. It results from the undisputed evidence provided by the Complainant that the disputed domain name currently resolves to a website of a private jet charter company “FlyEvolution” which incorrectly claims that “FlyEvolution is a trademark of AccorJets SA, wholly owned by ACCOR SA”. In addition, this website displays information related to the Complainant, such as its coordinates and most of legal terms including the information related to its insurer. Finally, this website also offers a fake brochure for download, reproducing the ACCOR trademark and including photos and names of the Complainant’s Board Members. Before starting these UDRP proceeding, the Complainant sent – on April 9, 2021 – a cease-and-desist letter via the registrar on the email address indicated on the website configured on the disputed domain name, in order to request its transfer. Despite several reminders, the Complainant did not receive any satisfactory result. 5. Parties’ Contentions A. Complainant Firstly, the Complainant points out that the disputed domain name is virtually identical or, at least, confusingly similar to Complainant’s trademark ACCOR. Indeed, the disputed domain name reproduces Complainant’s trademark ACCOR in its entirety and merely combines it with the term “jets”. However, the trademark ACCOR remains clearly recognizable within the disputed domain name. Additionally, the full inclusion of the Complainant’s trademark ACCOR in combination with the term “jets” increases the false impression that the disputed domain name is managed by the Complainant in order to promote services in the air transport or offer new services to its customers. Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Complainant contents that (1) the Respondent is neither affiliated with the Complainant in any way nor has he been authorized by the Complainant to use and register its trademark, or to seek registration of any domain name incorporating said trademark; (2) the Respondent has no prior rights or legitimate interests in the disputed domain name; (3) impersonating a company in order to mislead consumers cannot generate a legitimate interest to the Respondent; (4) the disputed domain name is virtually identical to the Complainant’s well-known trademark ACCOR; (5) the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain name; (6) considering the structure of the disputed domain name and the character of the website it is obvious that the Respondent is making a non-legitimate use of the disputed domain name, with intent for commercial gain. Thirdly, the Respondent’s registration and use of the disputed domain name constitutes – in the Complainant’s view – bad faith, in particular for the following reasons: (1) it is implausible that the Respondent was unaware of the Complainant’s well-known trademarks ACCOR when he registered the disputed domain name; (2) a quick trademark search on the term “ACCOR” would have revealed to the Respondent the existence of the Complainant and its trademarks; (3) the composition of the disputed domain name being confusingly similar to the Complainant’s well-known trademark ACCOR, demonstrates that the Respondent registered the disputed domain name in order to divert Internet traffic to its illegitimate website; (4) an email server has been configured on the disputed domain name and there is a high risk that the Respondent is engaged in a phishing scheme; (5) the Respondent uses the disputed domain name for a webpage displaying offering air transport services which could be considered as closely related to the Complainant’s activity specialized in the hospitality sector; (6) the disputed domain name is the result of an identity theft as the Complainant’s identity is used in the “contact us” section of the website configured on the disputed domain name and in the disclaimer. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs this Panel to “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”. Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements in order to obtain an order that the disputed domain name should be transferred or cancelled: (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. The Panel is satisfied that the registrant of record for the disputed domain name is the Respondent and will therefore proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied. A. Identical or Confusingly Similar Pursuant to paragraph 4(a)(i) of the Policy, the Complainant must first of all establish rights in a trademark or service mark and secondly establish that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Complainant is the owner of several trademark registrations containing the term ACCOR as only verbal element, i.e. French trademark registration No. 4464429, registered on June 26, 2018, and covering goods and services in classes 36, 36, 38, 39, 41, 42, 43 and 44, and International trademark registration No. 1471895, registered on December 24, 2018, designating inter alia the European Union, the OAPI, China, the United States, and covering services in classes 35, 36, 38, 39, 41, 42, 43 and 44. Furthermore, it is the view of this Panel that the combination of the trademark ACCOR with the term “jets” does not avoid the confusing similarity between the disputed domain name and the Complainant’s trademarks. In fact, in accordance with the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8, where the relevant trademark is recognizable within the 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. In the case at hand, the trademark ACCOR is undoubtedly recognizable within the disputed domain name; neither the (technically necessary) absence of the figurative elements contained in the trademarks on the one hand side, nor the addition of the dictionary term “jets” on the other side prevent a finding of confusing similarity (see e.g. Uber Technologies, Inc. v. Paul Svensen,WIPO Case No. D2020-3210 for the term “jets”). In the light of the above, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests Pursuant to paragraph 4(a)(ii) of the Policy, the Complainant must secondly establish that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interests to a disputed domain name. In the Panel’s view, based on the undisputed allegations stated above, the Complainant has made a prima facie case that none of these circumstances are found in the case at hand and, therefore, that the Respondent lacks rights or legitimate interests in the disputed domain name. First, it results from the Complainant’s uncontested evidence that the disputed domain name resolves to a website of a private jet charter company “FlyEvolution”, to which the disputed domain name currently resolves, incorrectly claims that “FlyEvolution is a trademark of AccorJets SA, wholly owned by ACCOR SA”. In addition, this website displays information related to the Complainant, such as its coordinates and most of legal terms including the information related to its insurer. Finally, this website also offers a fake brochure for download, reproducing the ACCOR trademark. However, the Complainant has not given any authorisation for such use and is not linked to the Respondent or this website in any way. In this Panel’s view, such use cannot be qualified as a bona fide offering of goods or services in accordance with paragraph 4(c)(i) of the Policy, since such use rather capitalizes on the reputation and goodwill of the Complainant’s trademarks and is therefore likely to mislead Internet users. In addition, the Respondent did not submit any evidence of bona fide pre-Complaint preparations to use the disputed domain name. In particular, the Complainant’s uncontested allegations demonstrate that it has not authorized or licensed the Respondent’s use of the ACCOR trademarks for registering the disputed domain name, which are confusingly similar. Furthermore, the Panel notes that there is no evidence in the record or WhoIs information showing that the Respondent might be commonly known by the disputed domain name in the sense of paragraph 4(c)(ii) of the Policy. Finally, the Panel notes that there is no evidence in the record either showing that the Respondent might be making a non-commercial 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 pursuant to paragraph 4(c)(iii) of the Policy. In particular, the Panel is satisfied that the registered trademarks ACCOR are distinctive so that it is unlikely that the Respondent wanted to fairly use the disputed domain name consisting of this trademarked term. In particular, the Panel notes that the ACCOR trademark is reproduced in its entirety with the added term “jets”, being this term applicable to a potential business field which is closely related to the business sector in which the Complainant plays a prominent role, i.e. the hospitality sector. In addition, the disputed domain name is used for a purely commercial website, so that a “non-commercial” use is excluded from the outset. It is acknowledged that once the Panel finds a prima facie case has been established, the burden of production shifts to the Respondent to come forward with relevant and concrete evidence demonstrating rights or legitimate interests in the disputed domain name. Since the Respondent in the case at hand failed to come forward with any allegations or evidence, this Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has therefore satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith According to paragraph 4(a)(iii) of the Policy, the Complainant must thirdly establish that the disputed domain name has been registered and is being used in bad faith. The Policy indicates that certain circumstances specified in paragraph 4(b) of the Policy may, “in particular but without limitation”, be evidence of the disputed domain name’s registration and use in bad faith. One of those circumstances are those specified in paragraph 4(b)(iv), i.e. where the domain name is used to intentionally attempt to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location. It is the view of this Panel that these circumstances are met in the case at hand: It results from the documented and undisputed evidence provided by the Complainant that the disputed domain name currently resolves to the website of a private jet charter company “FlyEvolution” which incorrectly claims to be “wholly owned by ACCOR SA”, the Complainant. In addition, this website displays information related to the Complainant, such as its coordinates and most of legal terms including the information related to its insurer. Finally, this website also offers a fake brochure for download, reproducing the ACCOR trademark and including photos and names of the Complainant’s Board Members. However, the Complainant has not given any authorisation for such use and is not linked to the Respondent or this website. For the Panel, it is therefore evident that the Respondent knew the Complainant’s trademarks, products and representatives. Consequently, and in the absence of any evidence to the contrary, the Panel is convinced that the Respondent also knew that the disputed domain name included the Complainant’s trademarks ACCOR when it registered the disputed domain name. Registration of a domain name which contains a third party’s trademark, in awareness of said trademark and in the absence of rights or legitimate interests is suggestive of registration in bad faith (see e.g., Charlotte Tilbury TM Limited v. Domains By Proxy, LLC / Qiangdong Liu, 365rw.com.ltd,WIPO Case No. D2020-0408; KOC Holding A.S. v. VistaPrint Technologies Ltd,WIPO Case No. D2015-1910; The Chancellor, Masters and Scholars of the University of Oxford v. Oxford College for PhD Studies,WIPO Case No. D2015-0812; The Chancellor, Masters and Scholars of the University of Oxford v. Almutasem Alshaikhissa,WIPO Case No. D2014-2100; and Deutsche Lufthansa AG v. Mustermann Max, Muster AG,WIPO Case No. D2015-1320). The finding of bad faith registration and use is supported by the following further circumstances resulting from the case at hand: (i) the content of the website, claiming a connection between this website and the Complainant, its address, its insurer and its legal representatives, which does, however, not exist; (ii) an email server has been configured on the disputed domain name and there is a high risk that the Respondent is engaged in a phishing scheme; (iii) the Respondent’s failure to submit a response to the Complaint and to the warning letter sent before UDRP proceedings have been started; (iv) the Respondent’s failure to provide any evidence of actual or contemplated good-faith use, (v) the implausibility of any good faith use to which the disputed domain name may be put, and (vi) the Respondent concealing its identity behind a privacy shield. Consequently, the Panel finds that the disputed domain name has been registered and is being used in bad faith pursuant to paragraph 4(a)(iii) of the Policy. The Complainant is therefore deemed to also have satisfied the third element, paragraph 4(a)(iii) 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 Tobias Malte Müller
Many UDRP Panels have found that a disputed domain name is confusingly similar to a complainant’s trademark where the disputed domain name incorporates the complainant’s trademark in its entirety (e.g., F. Hoffmann-La Roche AG v. Jason Barnes, ecnopt,WIPO Case No. D2015-1305; Compagnie Générale des Etablissements Michelin v. Christian Viola,WIPO Case No. D2012-2102; Volkswagen AG v. Nowack Auto und Sport - Oliver Nowack,WIPO Case No. D2015-0070; The Chancellor, Masters and Scholars of the University of Oxford v. Oxford College for PhD Studies,WIPO Case No. D2015-0812; Rhino Entertainment Company v. DomainSource.com, Inc.,WIPO Case No. D2006-0968; SurePayroll, Inc. v. Texas International Property Associates,WIPO Case No. D2007-0464). This Panel shares this view and notes that the Complainant’s registered trademark ACCOR is fully included in the disputed domain name.
Sole Panelist
Date: August 17, 2021
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