ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Accor v. Aleena Javed, Accor Case No. D2023-0059 1. The Parties The Complainant is Accor, France, represented by Dreyfus & associés, France. The Respondent is Aleena Javed, Accor, United Kingdom ("UK"). 2. The Domain Name and Registrar The disputed domain name
is registered with Google LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 5, 2023. On January 5, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 7, 2023, 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 (Contact Privacy Inc. Customer 7151571251) and contact information in the Complaint. The Center sent an email communication to the Complainant on January 9, 2023 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 January 11, 2023. 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 January 17, 2023. In accordance with the Rules, paragraph 5, the due date for Response was February 6, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 7, 2023. The Center appointed Theda König Horowicz as the sole panelist in this matter on February 16, 2023. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and page 2 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 well-known French based group dedicated for decades to operating worldwide hotels, resorts, and vacation properties under different brands including ACCOR. The group is notably present in China. The Complainant owns a number of trademarks formed with ACCOR including: - UK Trademark No. UK00910248466 for ACCORHOTELS, registered on March 20, 2012, and covering services in classes 35, 39, and 43; and - International Trademark No. 1471895 for ACCOR (device), registered on December 24, 2018, designating inter alia the United Kingdom, and covering services in classes 35, 36, 38, 39, 41, 42, 43, and 44. In addition, the Complainant owns and uses for its official Internet presence the domain names , registered on February 23, 1998, and registered on April 30, 1998. The disputed domain name was registered on December 13, 2022, and resolves to an inactive website. 5. Parties' Contentions A. Complainant Firstly, the Complainant alleges that the disputed domain name is virtually identical or at least confusingly similar to the Complainant's trademark ACCOR respectively ACCORHOTELS and to its official domain names , and . The disputed domain name reproduces the Complainant's well-known trademarks ACCOR respectively ACCORHOTELS entirely combined with the terms "group" directly targeting the Complainant's field of activity. The adjunction of a generic Top-Level Domain ("gTLD"), such as ".com", is insufficient to avoid a finding of confusing similarity. Secondly, the Complainant mentions that the Respondent is neither affiliated with the Complainant in any way, nor has it been authorized by the Complainant to use and register its well-known trademarks, or to seek registration of any domain name incorporating said trademarks. The Respondent cannot claim prior rights or legitimate interests in the disputed domain name as the ACCOR and ACCORHOTELS trademarks precede the registration of the disputed domain name for years. In addition, the disputed domain name is inactive and the Respondent has not made any reasonable and demonstrable preparations to use the disputed domain name. Thirdly, the Complainant states that the disputed domain name was registered and is being used in bad faith. The worldwide reputation of the Complainant (also in the United Kingdom where the Respondent is based) and its well-known trademarks could not be ignored by the Respondent when registering the disputed domain name. A quick trademark search would also have revealed the existence of the Complainant's prior trademark rights to the Respondent. The disputed domain name incorporates the Complainant's trademarks ACCOR and ACCORHOTELS which demonstrates that the Respondent knew of their existence. Furthermore, the Complainant's trademarks significantly predate the registration date of the disputed domain name and a quick Internet search would have shown their existence to the Respondent. The absence of license or permission to use the Complainant's well-known trademarks is an indication of bad faith use. In addition, the disputed domain name is likely to interfere with the Complainant's operations and business. page 3 Moreover, email servers have been configured on the disputed domain name and thus there might be a risk that the Respondent is engaged in a phishing scheme. Finally, the Complainant underlines that passive holding does not prevent a finding a bad faith depending on the circumstances like in this case. For the above-mentioned reasons, the Complainant requests transfer of the disputed domain name in its favour. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable. Paragraph 4(a) of the Policy directs that a complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith. Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. A. Identical or Confusingly Similar The Complainant has shown to have obtained trademark rights in ACCOR and ACCORHOTELS in many jurisdictions including in the United Kingdom where the Respondent is based. According to section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), the standing test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant's trademark and the disputed domain name. This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. In cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. The Panel finds that the disputed domain name is confusingly similar to the Complainant's registered trademarks ACCOR and ACCORHOTELS since it contains these marks in entirety. The addition of the term "group" in the disputed domain name does not prevent a finding of confusing similarity. See section 1.8 of the WIPO Overview 3.0. Furthermore, the gTLD ".com" is a standard registration requirement and as such is typically disregarded under the first element confusing similarity test. See section 1.11.1 of the WIPO Overview 3.0. page 4 The Panel therefore finds that the conditions in paragraph 4(a)(i) of the Policy are fulfilled in relation to the disputed domain name. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (i) the use of the domain name in connection with a bona fide offering of goods or services; or (ii) being commonly known by the domain name; or (iii) the making of a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Once the Complainant establishes a prima facie case against the Respondent under this ground, the burden of production shifts to the Respondent to rebut it. See section 2.1 of the WIPO Overview 3.0. The Complainant has made sufficient statements in order to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Complainant has not licensed or otherwise permitted the Respondent to use its trademarks. There is no evidence showing that the Respondent would be commonly known by the disputed domain name or that a legitimate business would be run by the Respondent under the disputed domain name, being reminded that the disputed domain name is inactive. The Panel therefore finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and the burden of production shifts to the Respondent who has chosen not to reply. The Respondent has not rebutted the Complainant's prima facie case, and there is no evidence of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain name on the part of the Respondent in the proceeding. As already stated before, nothing is contained in the case file which would show that the Respondent has made a legitimate noncommercial or fair use of the disputed domain name or that the Respondent has any rights or legitimate interests in the disputed domain name. The disputed domain name resolves to an inactive website. Furthermore, the disputed domain name combines the trademarks ACCOR and ACCORHOTELS in entirety with the additional term "group" which carries a risk of implied affiliation. See section 2.5.1 of the WIPO Overview 3.0. The Panel therefore finds that the conditions in paragraph 4(a)(ii) of the Policy are fulfilled in relation to the disputed domain name. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the complainant to prove both registration and use of the domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration and use in bad faith: (i) circumstances indicating that the respondent has registered or has 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 page 5 complainant, for valuable consideration in excess of the holder's documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has 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 the holder has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the holder's 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 holder's respondent's website or location or of a product or service on the holder's respondent's website or location. Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name was registered and is being used in bad faith. Given the circumstances of the case, including the distinctive nature of the Complainant's trademark ACCOR which is widely used by the Complainant, it is inconceivable to the Panel that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant's marks, including the trademark ACCORHOTELS. Further, the Panel finds that the Respondent could not have been unaware of the fact that the disputed domain name that he or she chose could attract Internet users in a manner that is likely to create confusion for such users. The Panel therefore finds that the disputed domain names were registered in bad faith. The disputed domain name currently resolves to an inactive website. It has been established in many UDRP cases that passive holding under the appropriate circumstances falls within the concept of a domain name being used in bad faith. Section 3.3 of the WIPO Overview 3.0 describes the circumstances under which the passive holding of a domain name will be considered to be in bad faith: "[w]hile panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant's mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent's concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put." The Panel finds that passive holding of the disputed domain name does not in the circumstances of this case prevent a finding of bad faith. There is no evidence in the record of a legitimate use of the disputed domain name. The trademarks of the Complainant are widely used and known. The Respondent has provided no evidence of actual or contemplated good-faith use of the disputed domain name and the Panel does not find any such use plausible. The silence of the Respondent in the proceeding is an additional evidence of bad faith in these circumstances. Moreover, previous UDRP panels have consistently found that the mere registration of a domain name that is confusingly similar to a famous or widely-known trademark (particularly domain names incorporating the mark plus a descriptive term) by an unaffiliated entity can by itself create a presumption of bad faith. See section 3.1.4 of the WIPO Overview 3.0. page 6 The Panel therefore finds that the conditions in paragraph 4(a)(iii) of the Policy are fulfilled in relation to the disputed domain name. 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, be transferred to the Complainant. /Theda König Horowicz/ Theda König Horowicz Sole Panelist Date: March 13, 2023
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