The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Privacy Protection, United States of America / Domain Administrator, Sugarcane Internet Nigeria Limited, 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 22, 2021. On June 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 23, 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 27, 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 30, 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 July 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 5, 2021. The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on August 12, 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 the operator of a number of different hotel chains in Europe and throughout the world, including Fairmont, Raffles, Swissôtel, Sofitel, Pullman, Novotel, Grand Mercure, and Ibis. The scale of the Complainant is that in Europe it has some 3,030 hotels and around 343,700 rooms, and in North and Central America it has some 120 hotels and 38,100 rooms. The Complainant has a presence in Nigeria, being the stated domicile of the Respondent. The Complainant owns a number of trademarks for ACCOR, of which the following are representative: - ACCOR, International trademark, registered on December 28, 1999, registration number 727696, in classes 16, 39, and 42; - ACCOR, with figurative elements, International trademark, registered on December 24, 2018, registration number 1471895, in classes 35, 36, 38, 39, 41, 42, 43, and 44; - ACCORHOTELS, European Union Trade Mark, registered on March 20, 2012, registration number 010248466, in classes 35, 39, and 43. The Complainant also uses for promotional purposes the domain names Nothing of significance is known about the Respondent except for the contact details provided for the purpose of registration of the disputed domain name on June 8, 2021. The disputed domain name has resolved to a parking page displaying sponsored links related to job recruitment, applicant tracking, and interview scheduling systems. The disputed domain name has also been set up with an email server enabling it to be used as an email address. 5. Parties’ Contentions A. Complainant The Complainant says it is the owner of the trademarks listed in section 4 above and has produced copies of the registration documents. The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s trademarks. The disputed domain name incorporates the entirety of the trademarks ACCOR and ACCORHOTELS. The Complainant submits that this should generally be considered sufficient to support a finding of confusing similarity. The additional descriptive word “carriers” in the disputed domain name should not prevent a finding of confusing similarity. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant says the Respondent is not affiliated with the Complainant and has not been authorised to use the Complainant’s trademarks or to register the disputed domain name. There is no evidence the Respondent is or has been known by the disputed domain name or by the Complainant’s trademarks, or been affiliated with the Complainant. The Respondent cannot use the disputed domain name for any bona fide activity and there is no evidence of any such use or preparations for use. The website to which the disputed domain name resolves is a parking page with links, related to employment and associated matters, that are likely to be revenue-generating links. There is no evidence of any noncommercial or fair use of the disputed domain name by the Respondent. The Complainant says there is evidence the disputed domain name has been set up with an email server for potential use as an email address, and therefore a risk that it could be used for illegitimate phishing activities. The Complainant further contends that the disputed domain name was registered and is being used by the Respondent in bad faith. The Complainant’s trademarks are well known throughout the world and the Respondent must have known about the Complainant when registering the disputed domain name. The similarity of the disputed domain name to the Complainant’s trademarks and the Complainant’s domain names indicates the Respondent intended to divert to itself Internet traffic intended for the Complainant, or to tarnish the Complainant’s trademarks. The Complainant submits this is a case where the disputed domain name is so obviously connected with a well-known trademark that its very use by someone having no connection with the trademark suggests opportunistic bad faith. The Complainant says the registration of the disputed domain name post-dates the Complainant’s trademarks. The Respondent had a duty to check that the disputed domain name would not infringe the trademark rights of another. The Complainant reiterates its concern, stated above under Rights and Legitimate Interests, that the disputed domain name has been set up for use as an email address that could potentially be used for phishing activities. The Complainant also reiterates that the disputed domain name has been put to use by resolving to a parking page that displays what appear to be sponsored links capable of deriving advertising revenue and thereby commercial gain for the Respondent through the fame of the Complainant’s trademarks. The Complainant says it has found that the Respondent has been the subject of more than 80 previous proceedings under the Policy, and says that the Respondent’s use of a privacy service to conceal its identity is further evidence of bad faith. The Respondent can have no plausible legitimate use for the disputed domain name. The Complainant has cited a number of previous decisions under the Policy that it considers to be supportive of its position. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that: “(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith”. The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute. A. Identical or Confusingly Similar The Panel is satisfied by the evidence produced that the Complainant has rights in the registered trademarks ACCOR and ACCORHOTELS. The disputed domain name The Panel finds the disputed domain name to be confusingly similar to the Complainant’s trademarks and finds for the Complainant under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has stated a prima facie case to the effect that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant says in evidence that it is not connected with the Respondent, who has not been granted any right to use the Complainant’s trademarks. Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation: “(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”. The Respondent has not responded and has not asserted rights or legitimate interests in the disputed domain name with reference to paragraphs 4(c)(i), (ii), or (iii) of the Policy or otherwise. There is no evidence that any use of the disputed domain name, in this instance for apparently sponsored links, has been in connection with a bona fide supply of goods or services; or that the Respondent has been commonly known by the disputed domain name; or that it has been put to any noncommercial or fair use. The Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name and finds for the Complainant under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant is required to prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely: “(i) circumstances indicating that you have registered or you have acquired the 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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”. The Panel has examined the uses to which the disputed domain name has been put. The website to which it resolves is a parking page that displays what may reasonably be concluded are sponsored links in accordance with the common business model of monetising a domain name not otherwise in productive use. The website, when viewed on June 18, 2021, offered visitors the link headings “Job Recruitment Sites”, “Applicant Tracking System for Job Seekers”, and “Interview Scheduling Tools”, the discernible common theme of which pertains to employment and careers. It is not entirely clear why the disputed domain name contains the descriptive word “carriers”. The phonetic similarity of the word “carriers” to the word “careers”, the latter word pertaining to the theme of the links offered by the website, might be either an accidental or an intentional misspelling of “careers”, but it is not necessary to know the purpose of the word in order to proceed. Based on the evidence presented, the disputed domain name, by exhibiting prominently the Complainant’s trademarks, is found to be likely to confuse some Internet users into believing, at least initially, that they were about to be taken or had been taken to a website belonging to or endorsed by the Complainant. The only apparent function of the Respondent’s website is to offer visitors links that, on the balance of probabilities, would be advertising in nature and remunerative to the Respondent. The Respondent is found to have used the disputed domain name in bad faith under paragraph 4(b)(iv) of the Policy. The disputed domain name has also evidently been used to establish a Mail Exchange (MX) record such that it could be used as an email address. There does not appear to be any legitimate basis on which the disputed domain name incorporating the Complainant’s trademark without authority could be used legitimately as an email address by the Respondent, and any attempt to do so would be capable of deceiving a recipient of an email into believing erroneously that it was associated with the Complainant. These circumstances affirm the above finding of bad faith. The Panel finds on the balance of probabilities that the disputed domain name was registered in bad faith for the purposes for which it has been used. Whilst the use of a privacy service by a registrant may be entirely legitimate, it is not so if the reason appears to be to avoid or delay contact in the event of any complaint by another party. According to the Complainant’s uncontested research findings, the Respondent has previously been the subject of more than 80 proceedings under the Policy. In these circumstances, the Panel finds that the Respondent’s use of a privacy service in the present instance further supports an inference of the Respondent’s bad faith. On the evidence, and on the balance of probabilities, the Panel finds the disputed domain name to have been registered and used in bad faith in the terms of 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 Dr. Clive N.A. Trotman
Sole Panelist
Date: August 25, 2021
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