The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is 沈小恒 (Xiao Heng Shen), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on October 28, 2021. On the following day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 1, 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. On the following day, the Center sent an email communication to the Complainant 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 in English on November 3, 2021.
On November 2, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. On the same day the Complainant confirmed its request that English be the language of the proceeding. 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 in English and Chinese of the Complaint, and the proceedings commenced on November 19, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 9, 2021. The Respondent sent emails in Chinese and English to the Center on November 24, 2021 and December 4, 2021. He also sent an email in Chinese to the Center on December 2, 2021, in which he provided his communication with the Registrar indicating that the disputed domain name did not belong to him. The Center notified the Parties that it would proceed to Panel appointment on December 14, 2021.
The Center appointed Matthew Kennedy as the sole panelist in this matter on December 28, 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 is a hotel operator. It owns, manages and franchises hotels, resorts, and vacation properties around the world, including the Fairmont, Raffles, Swissôtel, Sofitel, Pullman, Novotel, Grand Mercure and Ibis hotel chains. The Complainant owns multiple trademarks, including international trademark registration number 727696 for ACCOR, registered on December 28, 1999, designating multiple jurisdictions, including China, and specifying goods and services in classes 16, 39 and 42. That trademark registration remains current. The Complainant also registered the domain name
The Respondent is an individual resident in China. The email communications sent from his contact email address as confirmed by the Registrar to the Center show the user name “永恒” (which may be transcribed as “Yong Heng”).
The disputed domain name was registered on June 2, 2021. It formerly resolved to a webpage in Chinese titled “促簇时讯网” (which may be translated as “Cucu News Network”) displaying lists of hyperlinks to sports news articles arranged according to topic and date, and providing a search engine. The webpage also displayed hyperlinks regarding certain Internet-related services, including “域名抢注” (i.e., domain name cybersquatting), 竞价” (i.e., bidding) and “老域名出售” (i.e., sale of old domain names). At the time of this Decision, the disputed domain name does not resolve to any active website; rather, it is passively held.
5. Parties’ Contentions A. ComplainantThe disputed domain name is confusingly similar to the Complainant’s ACCOR trademark.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. 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.
The disputed domain name was registered and is being used in bad faith. ACCOR is a well-known trademark throughout the world, including China, where the Respondent is located. The association of that trademark with the word “meetings” clearly demonstrates that the Respondent registered the disputed domain name based on the attractiveness of the Complainant’s trademarks, in order to divert Internet traffic to its illegitimate website.
B. RespondentIn his initial email to the Center, the Respondent submitted that the disputed domain name was not his. He had advised the Registrar accordingly but, since the Registrar could not update the WhoIs record, it had told him that he could ignore the notice of the Complaint.
The Respondent later reiterated that the disputed domain name was not with him and that he did not know why his details were listed in the Registrar’s WhoIs database. He basically does not register domain names; he just pre-bids on domain names. No domain name targets anything and no website is operated in bad faith. The Respondent asks why registration of the disputed domain name was not prohibited ex ante, instead of waiting for someone to register it then initiating an arbitration. He notes that the notice of the Complaint referred to the payment of fees [if the Respondent wished to elect a three-member panel to hear the case] but he is a disabled person with no money or domain names; the money for the domain name was an interest-free loan from the government for the poor and disabled.
6. Discussion and Findings 6.1 Preliminary Issues A. Identification of the RespondentThe person listed as the Respondent in Section 1 above claims that the disputed domain name is not his, implying that he is not the proper Respondent in this proceeding.
Paragraph 1 of the Rules provides that “Respondent” means the holder of a domain-name registration against which a complaint is initiated. In the present dispute, the Registrar has verified that the holder of the disputed domain name is the person listed as the Respondent in Section 1 above. The amended Complaint initiates this dispute against that person. Accordingly, the Panel finds that the Respondent in this proceeding is properly identified as that person, i.e., 沈小恒 (Xiao Heng Shen).
B. Language of the ProceedingParagraph 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 Agreement for the disputed domain name is 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 would impose an undue burden on the Complainant, while the disputed domain name is composed of Latin characters, from which it can be assumed that the Respondent has knowledge of English.
Although the Respondent did not directly reply to the Center’s email regarding the language of the proceeding dated November 2, 2021, in his email communications, he claims that he does not understand English and that he used software to help translate his communications from Chinese to English.
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 the Complaint in this proceeding was filed in English whereas the Respondent’s email communications to the Center were both in Chinese and English. The disputed domain name also incorporates an English word. Both Parties have presented their respective views of the matter in dispute. The Panel is familiar with both Chinese and English. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay whereas accepting the original version of both Parties’ communication without translation does not cause prejudice 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, but that it will accept communications filed in both Chinese and English.
6.2 Substantive IssuesParagraph 4(a) of the Policy provides that a complainant must prove each of the following elements:
(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.
A. Identical or Confusingly SimilarBased on the evidence presented, the Panel finds that the Complainant has rights in the ACCOR mark.
The disputed domain name wholly incorporates the ACCOR mark as its initial element. Although the disputed domain name also includes the word “meetings”, the ACCOR mark remains clearly recognizable within the disputed domain name.
The only other element in the disputed domain name is a generic Top-Level Domain (“gTLD”) suffix (“.com”). As a mere technical requirement of domain name registration, this element may be disregarded in the comparison between the disputed domain name and the Complainant’s mark.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsParagraph 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:
(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.
With respect to the first circumstance set out above, the disputed domain name formerly resolved to a webpage displaying hyperlinks to sports news articles, as well as certain Internet-related services. The Complainant submits that the Respondent is neither affiliated with it in any way nor has he been authorized by it to use and register its trademark, or to seek registration of any domain name incorporating said trademark. Nothing on the website had any apparent connection to “Accor” or would provide an explanation for the incorporation of that element in the disputed domain name. At the time of this Decision, the disputed domain name is passively held. Accordingly, the Panel considers that the Complainant has made a prima facie case that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.
With respect to the second circumstance set out above, the Respondent’s name is shown in the Registrar’s WhoIs database as “沈小恒 (Xiao Heng Shen)”, not the disputed domain name. Neither the Respondent’s email user name, nor the title of his webpage, have any apparent connection to the disputed domain name. There is no evidence on the record that the Respondent has been commonly known by the disputed domain name.
With respect to the third circumstance set out above, the disputed domain name formerly resolved to a website displaying hyperlinks to press articles and Internet-related services. The page operated for the commercial gain of the Respondent, if he was paid to direct traffic to the linked sites, or the commercial gain of the operators of those linked sites, or both. At the time of this Decision, the disputed domain name is passively held. In each scenario, this use does not constitute a legitimate noncommercial or fair use of the disputed domain name.
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 name.
Turning to the Respondent’s arguments, he alleges that he makes pre-bids on domain names. This argument does not demonstrate any rights or legitimate interests with respect to the disputed domain name, particularly when it is considered that the hyperlinks on the Respondent’s webpage regarding bidding and domain name cybersquatting. Accordingly, the Respondent failed to rebut the Complainant’s prima facie case.
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 name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance 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] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] web site or location or of a product or service on [the respondent’s] web site or location.”
As regards registration, the disputed domain name was registered in 2021, years after the registration of the Complainant’s ACCOR trademark, including in China, where the Respondent is resident. The Complainant has made extensive use of its ACCOR mark, including in China, which appears to have no other meaning than as the Complainant’s mark. The disputed domain name combines the mark with the English word “meetings”, which does not appear to be a random choice but rather tends to indicate an awareness of the nature of the Complainant’s business. Nor does it appear to be a coincidence that the disputed domain name contains the same three elements as the address of the Complainant’s website “www.meetings.accor.com” for organizing meetings and professional events, including at its properties in China (albeit arranged in a different order). The Respondent claims that the disputed domain name does not target anything but neither the Response nor the content of the Respondent’s webpage provides any apparent explanation for his choice of the disputed domain name. In view of these circumstances, the Panel is persuaded that the Respondent had the Complainant’s ACCOR mark in mind at the time when he registered the disputed domain name.
As regards use, the disputed domain name formerly resolved to a webpage displaying hyperlinks to sports news articles and certain Internet-related services, including bidding and domain name cybersquatting and the sale of old domain names. The page operated for the commercial gain of the Respondent, if he was paid to direct traffic to the linked sites, or of the operators of those linked sites, or both. Given these circumstances, the Panel finds that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his webpage, by creating a likelihood of confusion with the Complainant’s ACCOR mark as to the source, sponsorship, affiliation, or endorsement of his webpage within the terms of paragraph 4(b)(iv) of the Policy.
The Panel notes that the use of the disputed domain name has since changed, and that it no longer resolves to an active website. This change of use does not alter the Panel’s conclusion and may in fact constitute a further indication of bad faith.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy.
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
Matthew Kennedy
Sole Panelist
Date: January 11, 2022