The Complainant is Accor of Evry, France, represented by Dreyfus & associés, France.
The Respondent is JE Jeong of Seoul, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with Click Panda. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 17, 2010. On November 17, 2010, the Center transmitted by e-mail to Click Panda a request for registrar verification in connection with the disputed domain name. On November 18, 2010, Click Panda transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on November 22, 2010.
The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 13, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 14, 2010.
The Center appointed Gunnar Karnell as the sole panelist in this matter on December 28, 2010. 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 disputed domain name was registered on July 20, 2010, and latest updated on September 15, 2010.
The Complainant owns and operates several hotels, some under its corporate name Accor, a well-known trade mark, protected worldwide in particular for hotels and restaurants. It owns the International Trade mark Registration No. 953507, registered on August 16, 2007, and designating the Republic of Korea, hence years before the registration of the disputed domain name. There, the Complainant owns nine hotels, employing 955 people. Around the world, it operates in some 100 countries, employing more than 150,000 people.
It also owns domain name registrations reflecting its trade marks: registered on February 23, 1998, and , registered on April 30, 1998.
The Complainant has requested that the disputed domain name be transferred to the Complainant. 5. Parties’ Contentions A. Complainant
By entirely reproducing the Complainant’s trade mark ACCOR, the disputed domain name is identical or confusingly similar to the trade mark. The added generic element “hotels” only maintains a likelihood of confusion in the mind of Internet users, describing the Complainant’s main business, thus making believe that the domain name belongs to the Complainant. A specific top level of a domain name, such as “.co”, does not affect the identity or confusing similarity. An unintentional and inadvertent typing error of leaving out an “m” may cause a consumer intending to reach the Complainant’s website at “www.m” to end up on the page associated with the disputed domain name.
The Respondent has no prior rights or legitimate interests in respect of the disputed domain name. The similarities between the domain name and the Complainant’s ACCOR trade mark and its domain name do not allow any pretention of an intention on the part of the Respondent to develop a legitimate activity through its domain name. The Respondent is not commonly known by the name Accor, nor is it affiliated with the Complainant or authorized or licensed to use ACCOR as a trade mark or in a domain name. The Respondent’s sole objective is to benefit from the reputation of the Complainant’s trade mark ACCOR. The term “Accor” is not known to have any meaning in itself in any language.
The disputed domain name was registered and is being used in bad faith. The Complainant and its trade mark ACCOR are widely known worldwide. The Respondent cannot have been unaware of them. An Internet search for the term “Accor” would have revealed to the Respondent the existence of the Complainant, its business and its trade mark. This is a contributory factor to its bad faith. The Respondent could not have ignored the Complainant’s rights at the time of registration of the disputed domain name. Activities on the part of the Respondent, under another name, until the day of reception of notice of the dispute – the disputed domain name then used to resolve to a parking page containing pay-per-clicks links in French about, among other matter, hotel reservations - do not represent a use in connection with a bona fide offering of goods and services of relevance for the present case.
More in detail, about the registration and use of the disputed domain name , the Complainant adduces that on September 15, 2010, it sent a cease-and-desist letter by e-mail and registered mail to SJ Park, then being the registrant name recorded on the WhoIs database, demanding transfer of the domain name to the Complainant. On the same day, SJ Park replied by e-mail, merely stating that it reserved the disputed domain name for future commercial purposes. Since then the information about the registrant recorded on the WhoIs database has been modified so as now to mention the current Respondent JE Jeong, leading one to at least initially imagine that a transfer of the disputed domain name took place. However, presently, the registrar and the domain name expiration date are still the same as indicated in the pre cease-and-desist letter version. Yet, .CO Internet S.A.S., the registry operator for the “.co” country-code domain, clearly states on its website that successful transfers will result in a one-year domain name renewal registration. Here, this one year renewal did not take place. It is legitimate to infer that there was no transfer of the disputed domain name itself. Also, the WhoIs database indicates that the disputed domain name was last updated just a few hours after the dispatch of the Complainant’s e-mail letter. Therefore, the registrant appears still to be one and the same person and engaged in “cyberflight”, i.e., a practice where the registration information is altered once a respondent has become aware of proceedings being brought against it under the UDRP. Hence, the Respondent shall be treated as being the same entity as the original registrant, SJ Park. The name JE Jeong is likely to be the name of another entity selected by the original registrant to suit its cyberflying purpose. The Complainant has not sent any additional cease-and-desist letter to the Respondent for fear that, upon its receipt of such a letter, the Respondent might try again to modify the WhoIs database information in order to escape the present proceedings. Now, the disputed domain name directs Internet users to an “error” page, replacing the earlier parking page mentioned here above. By it the Respondent took undue advantage of the Complainant’s trade mark to generate profits by the confusion caused by the similarity of the Complainant’s trade mark and the disputed domain name and by the risk for typing errors because of the misleading absent “m”.
The fact that the disputed domain name is now inactive shall not lead to a conclusion of non-use of the domain name by the Respondent. Presently, no possible good faith use of the domain name is imaginable in view of the notoriety of the Complainant’s trade mark, being well-known worldwide. The Respondent has not come up with any actual or contemplated good faith use of the disputed domain name but it has actively provided or failed to correct false contact detail for purposes of a domain name registration. The mailed cease-and-desist letter version was returned to sender due to an incomplete address. Hence, the Respondent’s passive holding of its domain name constitutes bad faith use. It is also evidenced by its “cyberflying”, warranting the conclusion that no real transfer ever took place, since the disputed domain name expiration date is still the same one as prior to said modifications which is inconsistent with registration rules for the country-code domain. Also, such use was not authorized by the Complainant. The mere presence of the generic term “hotels” in the disputed domain name illustrates the Respondent’s bad faith since it refers to the worldwide established activities of the Complainant under its well-known trade mark. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The factual foundation of the Complainant’s contentions, as presented in great detail by the Complainant, while supporting its non contradicted claim by written evidence and ample reference to earlier UDRP case decisions, allows the Panel to deal summarily with the case. A. Identical or Confusingly Similar
For above-referenced reasons given by the Complainant, the disputed domain name is confusingly similar to the Complainant’s registered and widely known trade mark ACCOR, equaling its corporate name. B. Rights or Legitimate Interests
The Complainant has not licensed or otherwise authorized the Respondent to use its trade mark for registration or any other purpose. There is no indication that the Respondent has before notice of the dispute used or prepared for use of the disputed domain name or a name corresponding to it in connection with a bona fide offering of goods or services. Nor does the Respondent under any of its names for registration appear to be commonly known by the disputed domain name and it is evidently not making a legitimate noncommercial use of it.
The Complainant has established a prima facie case of lack of the Respondent’s rights or legitimate interests and there has been no rebuttal by the Respondent. There is nothing in the case file that gives reason to believe that the Respondent, under any name registered, has or has had any rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Absent any indication in the case file of elements that might tell against giving credence to the Complainant’s assertions regarding facts leading up to its conclusions that the disputed domain name has been registered and used in bad faith, the Panel confirms that these conditions for transfer of the disputed domain name to the Complainant are satisfied. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Gunnar Karnell
Sole Panelist
Dated: January 10, 2011
Full & Egal Universal Law Academy