The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is LinYanXiao (林彦晓), China. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2021. On June 21, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 22, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 23, 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 28, 2021. On June 23, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on June 28, 2021. 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 of the Complaint in English and Chinese, and the proceedings commenced on June 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 26, 2021. The Center appointed Matthew Kennedy as the sole panelist in this matter on August 11, 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 hotel operator. It operates over 5,100 hotels in 110 countries, including China, under a range of brands. It also operates the “ALL - Accor Live Limitless” customer loyalty program. The Complainant is the owner of multiple trademark registrations, including the following: - International trademark registration number 1471895 for a semi-figurative ACCOR mark, registered on December 24, 2018, designating multiple jurisdictions, including China, and specifying services in multiple classes, including business management of hotels and certain customer loyalty services; and - International trademark registration number 1472728 for a semi-figurative ALL mark, registered on December 24, 2018, designating multiple jurisdictions, including China, and specifying services in multiple classes, including business management of hotels and certain customer loyalty services. The above trademark registrations remain current. The Complainant registered the domain name The Respondent is an individual resident in China. The disputed domain names were registered at the same time on March 28, 2021. They resolve to parking pages displaying pay-per-click (“PPC”) links to websites for hotels. 5. Parties’ Contentions A. Complainant The disputed domain names are confusingly similar to the Complainant’s ACCOR and ALL trademarks. The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent is not affiliated with the Complainant in any way and has not been authorized by the Complainant to use or register its ACCOR and ALL trademarks or to seek registration of any domain names incorporating the aforesaid trademarks. The Respondent is not commonly known by the disputed domain names or the names “Accor” and “All”. The disputed domain names resolve to parking pages displaying commercial links directly targeting the Complainant’s field of activity. The disputed domain names were registered and are being used in bad faith. The Complainant is well-known throughout the world. The composition of the disputed domain names includes two of the Complainant’s well-known trademarks. The direction of the disputed domain names towards a parking page with commercial links evidences an intent to misleadingly divert consumers by taking unfair advantage of the goodwill and reputation of Complainant’s ACCOR and ALL trademarks. B. Respondent 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 Agreements for the disputed domain names are in Chinese. The Complainant requests that the language of the proceeding be English. Its main arguments are that the Complainant has no knowledge of Chinese; translation of the Complaint into Chinese would create an unreasonable burden and cost; and the disputed domain names are in Roman characters. Paragraph 10(b) and (c) of the Rules require 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. Despite the Center having sent the Parties an email regarding the language of the proceeding and a notice of the Complaint in both Chinese and English, the Respondent did not comment on the issue of the language of the proceeding or express any interest in participating otherwise in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay whereas accepting it in English does not create 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. The Panel would have accepted a Response in Chinese, but none was filed. 6.2. Substantive Issues Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements with respect to each disputed domain name: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and Based on the evidence submitted, the Panel finds that the Complainant has rights in the semi-figurative ACCOR and ALL trademarks. Given that the figurative elements of these trademarks are incapable of representation in domain names, the Panel will disregard them in the comparison between the disputed domain names and the trademarks for the purposes of the first element of paragraph 4(a) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.10. The disputed domain names both incorporate the textual element of the ACCOR trademark while the disputed domain name The disputed domain names also include a generic Top-Level Domain (“gTLD”) suffix (“.com”). As a standard technical requirement of domain name registration, a gTLD suffix is normally disregarded in the comparison between a disputed domain name and a trademark for the purposes of the first element of the Policy. See WIPO Overview 3.0, section 1.11. Therefore, the Panel finds that the disputed domain names are confusingly similar to a trademark or trademarks 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: As regards the first and third circumstance set out above, the disputed domain names incorporate the Complainant’s ACCOR mark and resolve to a parking page that displays PPC links referring to hotels, which is the Complainant’s field of business. The Complainant submits that the Respondent is not affiliated with it in any way and has not been authorized by it to use or register its trademarks. Accordingly, the Complainant has made a prima facie case that the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services within the terms of paragraph 4(c)(i) of the Policy. Moreover, the PPC links operate for the commercial gain of the Respondent, if he is paid to direct traffic to the linked sites, or of the operators of the linked sites, or both. In each such scenario, this does not constitute a legitimate noncommercial or fair use of the disputed domain names within the terms of paragraph 4(c)(iii) of the Policy. As regards the second circumstance, the Registrar has confirmed that the Respondent’s name is “LinYanXiao” (林彦晓), which has no relation to either of the disputed domain names. There is no evidence that the Respondent has been commonly known by either of the disputed domain names within the terms 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 names. The Respondent failed to rebut that prima facie case because he did not respond to the Complaint. 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 names. 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. The fourth of these is as follows: (iv) by using the [disputed] domain name, [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. As regards registration, the disputed domain names were registered in 2021, after the registration of the Complainant’s ACCOR and ALL semi-figurative marks. The disputed domain name As regards use, the disputed domain names resolve to parking pages displaying only PPC links. The links resolve to websites for hotels, which is the Complainant’s field of business. The PPC links operate for the commercial gain of the Respondent, if he is paid to direct traffic to the linked sites, or of the operators of the linked sites, or both. In each such scenario, the disputed domain names are used for commercial gain. Accordingly, the Panel finds that the Respondent’s use of the disputed domain names falls within the terms of paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the disputed domain names have been registered and are 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 names Matthew Kennedy
(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
(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.
Sole Panelist
Date: August 16, 2021
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