The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Name Redacted1.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2021. On July 14, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 15, 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 July 16, 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 July 21, 2021.
The Registrar also indicated that the language of the Registration Agreement was French. The Complaint was filed in English. The Center sent an email communication to the Complainant on July 23, 2021, inviting the Complainant to provide sufficient evidence of an agreement between the Parties for English to be the language of proceeding, a Complaint translated into French, or a request for English to be the language of proceedings. The Complainant filed an amended Complaint on August 5, 2021. The Respondent did not submit any arguments.
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 English and French, and the proceedings commenced on August 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 1, 2021.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on October 8, 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 BackgroundThe Complainant, founded in 1967, is one of the leader in economic and mid-scale hotels and a major player in upscale and luxury hospitality services, operating more than 5,100 hotels in 110 countries, with a capacity of about one million rooms.
The Complainant is the registered owner of a portfolio of trademark registrations, most containing the term “accor”, including International Trademark Registration for ACCOR No. 1471895 registered on December 24, 2018, European Union Trademark Registration for ACCORHOTELS No. 010248466 registered on March 20, 2012, and the International Trademark Registration for ALL No. 1472278 registered on December 24, 2018 (together referred to as: the “Marks”).
ALL is the acronym of Accor Live Limitless, the Complainant’s loyalty program for its guests.
The Complainant carries on its business in large part by online sales, including in France, where the Respondent appears to be located.
The Complainant is the owner of numerous domain names, including inter alia
The disputed domain name was registered on July 3, 2021.
The Complainant has submitted evidence that the disputed domain name resolved to a Registrar’s website page, and that MX servers were configured on the disputed domain name. At the time of this decision, the disputed domain name is inactive.
5. Parties’ Contentions A. Complainant(i) The Complainant submits that the disputed domain name reproduces the Marks, in which the Complainant has rights, and is confusingly similar to the Marks insofar as the disputed domain name contains the distinctive element “accor”, in its entirety. The Complainant also asserts that the addition of the term “all” does not serve to distinguish the disputed domain name from the Marks.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends that it never licensed the Respondent to use the Marks in any manner, or consented to such use. The Complainant also asserts that the Respondent never had any business connection or affiliation with the Complainant.
(iii) The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant alleges that it is not by coincidence that the Respondent chose to register the disputed domain name.
(iv) The Complainant submits that by having configured MX servers on the disputed domain name, the Respondent may send phishing emails which are likely to fraudulently incite revelation of personal data, and that the Respondent is using the disputed domain name in bad faith.
(v) The Complainant requests that the disputed domain name be transferred to the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsAs a preliminary matter, the Panel notes the Complainant’s position that the Respondent, whose identity was disclosed by the Registrar in response to the Center’s request for registrar verification in connection with the disputed domain name, was victim of identity theft.
Accordingly, the Panel finds that it is appropriate in this proceeding to redact the actual name of the Respondent. See Independent Health Association Inc. v. Registration Private, Domains By Proxy, LLC / [K. A.],WIPO Case No. D2016-1625. The Panel has attached as Annex 1 to this decision an instruction to the Registrar regarding the transfer of the disputed domain name, which includes the name of the Respondent. 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.
6.1. Procedural Aspects A. Language of the ProceedingParagraph 11(a) of the Rules provides that “[u]nless 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 language of the Registration Agreement of the disputed domain name is French.
The Complainant argued in its second amended Complaint that the Registrar’s website displays its registration agreement both in English and in French, that English is the primary language for international relations and that prior WIPO UDRP panels have allowed the language of the proceeding to be English where the Registrar was, as in this case, Combell NV, and formally requested that the language of the proceeding be English, to which the Respondent failed to comment or to object.
In the light of the above circumstances, particularly the fact that it would be disproportionate to burden the Complainant with the time and cost of translating and submitting the Complaint in French, and having to ensure pursuant to paragraph 10(c) of the Rules that the administrative proceeding takes place with due expedition, the Panel, who is conversant in both English and French, determines pursuant to paragraph 11(a) of the Rules that the appropriate language of the proceeding is English.
B. Failure to RespondAs aforementioned, no Response was received from the Respondent.
Under the Rules, paragraphs 5(f) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even in the event of a default.
Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.
6.2. Requirements of Paragraph 4(a) of the Policy A. Identical or Confusingly SimilarIn comparing the Marks with the disputed domain name, it is evident that the latter consists solely of the distinctive element “accor”, preceded by the term “all” and a hyphen, followed by the term “hotel” (without the final letter “s”), and by the generic Top-Level Domain (“gTLD”) “.com”.
The addition of terms does not prevent a finding of confusing similarity. In this case, the dominant element “accor” remains recognizable in the disputed domain name. See Banconsumer Service, Inc. v. Mary Langthorne, Financial Advisor,WIPO Case No. D2001-1367; Royal Bank of Canada v. RBC Bank,WIPO Case No. D2002-0672; and Allianz AG v. Marian Dinu,WIPO Case No. D2006-0318.
It is also well established that any gTLD, including, as is the case here, the gTLD “.com”, does not generally affect the assessment of a domain name for the purpose of determining identity or confusing similarity.
The Panel finds that the disputed domain name is confusingly similar to the Marks, which it incorporates.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsAlthough a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of a respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing, as the Panel believes the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is commonly known by the disputed domain name or makes a legitimate noncommercial or fair use of the disputed domain name.
The web page associated with the disputed domain name used to resolve to the Registrar’s website.
No information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name.
To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no business connection or affiliation with the Complainant and (ii) received no license or consent from the Complainant to register or use the disputed domain name.
In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain name.
C. Registered and Used in Bad FaithAs noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name confusingly similar to the Marks, which can be considered as “cybersquatting”.
It is established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke,WIPO Case No. D2001-0775.
A number of previous UDRP panels have considered the Marks as well-known trademarks (see Accor v. DreamHost, Long Giang,WIPO Case No. D2014-0196; Accor and SoLuxury HMC v. “m on”,WIPO Case No. D2012-2262; Accor and SoLuxury HMC v. Fundacion Private Whois,WIPO Case No. D2012-1654; Accor v. Mao Jian Ting,WIPO Case No. D2012-0189; Accor v. Domainjet, Inc.,WIPO Case No. D2012-0038; Accor v. Huajicani Hujiancai,WIPO Case No. D2014-0189; and Accor v. Reap Usd,WIPO Case No. D2016-0177).
In this case, given that the Respondent seems to have targeted the Complainant (see Accor v. Contact Privacy Inc. Customer 1249234285 and Customer 1249234008 / Herve Renault,WIPO Case No. D2021-0349), the Panel finds that it is close to impossible that the Respondent chose to register the disputed domain name randomly with no knowledge of the Marks. See Barney’s Inc. v. BNY Bulletin Board,WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs,WIPO Case No. D2001-1384 citing Cellular One Group v. Paul Brien,WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin,WIPO Case No. D2001-1092.
In addition, it is well established that the mere passive holding of a domain name may in appropriate circumstances be evidence not only of bad faith registration, but also of bad faith use. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; DCI S.A. v. Link Commercial Corporation,WIPO Case No. D2000-1232; Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004; and Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital,WIPO Case No. D2000-1260.
Moreover, in this case, the Respondent took active steps to hide its identity. Although using a proxy or privacy service to hide the identity of the registrant is not per se conclusive of bad faith registration and use (see Trinity Mirror Plc and MGN Ltd. v. Piranha Holdings,WIPO Case No. D2008-0004), the Panel notes that the fact that the Respondent used a privacy service to hide its identity and contact details prevented the Complainant from contacting it. Prior UDRP panels have held that deliberate concealment of identity and contact information may in certain circumstances be indicative of registration in bad faith (see TTT Moneycorp Limited v. Diverse Communications,WIPO Case No. D2001-0725, and Schering Corporation v. Name Redacted,WIPO Case No. D2012-0729). See section 3.2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”).
Some UDRP panels have held that in certain circumstances, registrants of domain names have an affirmative duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer,WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex,WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN,WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao,WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg,WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc.,WIPO Case No. D2007-1141.
In this case, the disputed domain name resolved to a Registrar’s website page, and MX servers were configured on the disputed domain name, with the subsequent risk of phishing activities, further suggesting bad faith in the use of the disputed domain name.
Finally, the Panel notes that many UDRP panels have held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible, considering the specificity of the activity (see Audi AG v. Hans Wolf,WIPO Case No. D2001-0148). The Panel finds it is indeed not possible to imagine any plausible future active use of the disputed domain name that would not be illegitimate, considering the specificity of the Complainant’s activity and the fact that the disputed domain name is confusingly similar to the Marks.
The Panel concludes in the light of all these circumstances that the Respondent’s registration and use of the disputed domain name constitutes bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
7. DecisionFor 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,
Louis-Bernard Buchman
Sole Panelist
Date: October 22, 2021
1 See the Panel’s finding under section 6 of this decision