Complainant is Accor of Paris, France, represented by Dreyfus & associés, France.
Respondent is Domains By Proxy, LLC, DomainsByProxy.com of Scottsdale, Arizona, United States of America ("US") / Abdul-Rasheed Barimah of Kumasi, Ghana.
The disputed domain name <accorhotels.london> is registered with GoDaddy.com, LLC (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 6, 2016. On January 6, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date 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 Complainant on January 7, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 12, 2016.
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 Respondent of the Complaint, and the proceedings commenced on January 14, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 3, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 4, 2016.
The Center appointed Luiz E. Montaury Pimenta as the sole panelist in this matter on February 18, 2016. 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.
Complainant, Accor, is a French company that operates around 3,700 hotels in 92 countries (205 are located in the United Kingdom of Great Britain and Northern Ireland ("United Kingdom")) and has around 5,078 employees.
Complainant owns numerous trademark registrations throughout the world for the ACCOR and ACCORHOTELS marks (e.g., Community trademark ACCORHOTELS No. 10248466 registered on March 20, 2012; US trademark ACCORHOTELS No. 4270310 registered on January 8, 2013; International trademark ACCORHOTELS No. 1103847 registered on December 12, 2011; and Canadian trademark ACCOR No. TMA595006).
Complainant operates websites located at <accor.com> and <accorhotels.com> used for hotel accommodation services.
The disputed domain name was registered on July 14, 2015 with the Registrar.
Complainant alleges that:
Its trademarks ACCOR and ACCORHOTELS enjoy a worldwide reputation.
The disputed domain name <accorhotels.london> reproduces entirely Complainant's trademarks ACCOR and ACCORHOTELS, which previous panels have declared to be well-known (See Accor v. Domains By Proxy, LLC / Abdulrahman Almarri, WIPO Case No. D2015-0777). Complainant considers this fact as sufficient to establish that the disputed domain name is identical or confusingly similar to Complainant's trademarks.
Furthermore, the disputed domain name associates Complainant's trademark ACCOR to the generic term "hotels", and UDRP decisions have established that adding a generic term to the mark does not influence the similarity between a trademark and a domain name (See Nintendo of America v. Gray West International, WIPO Case No. D2000-1219). The term "hotels" increases the level of confusion as it corresponds to Complainant's activity field.
The disputed domain name is associated with the new generic Top-Level Domain ("gTLD") ".london". The use of a gTLD typically has no influence on the assessment of the similarity between a complainant's trademarks and a disputed domain name.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name. Complainant asserts that the ACCOR trademarks preceded the registration of the disputed domain name by years. As well, Complainant states that it has not licensed or otherwise authorized Respondent to use the ACCOR trademark, there is no relationship between the Parties, and nothing in the record suggests that Respondent is commonly known by the disputed domain name.
In addition, Complainant contends that Respondent did not demonstrate preparations to use the disputed domain name in connection with a bona fide offering of goods and services. The disputed domain name previously resolved to a website offering the disputed domain name for sale and relating to excursions led by tour experts in the United Kingdom. Complainant affirms that, presently, the disputed domain name directs to a website that constitutes an imitation of Complainant's official website. Internet users may try booking hotel rooms through Respondent's website, which allows Respondent to obtain confidential information like credit card numbers and personal identification numbers from Complainant's clients.
A legitimate noncommercial or fair use of the disputed domain name cannot be inferred due to Respondent's intention for commercial gain while offering it for sale via email exchanges. The apparent reason why Respondent has registered the disputed domain name is to sell it to Complainant.
Respondent registered the disputed domain name with a privacy shield service to hide his identity and prevent Complainant from contacting him. This behavior highlights the fact that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant alleges that Respondent intentionally registered and is using the disputed domain name in bad faith since it is implausible that Respondent was unaware of Complainant's ACCOR trademark as Complainant's trademarks are well-known worldwide. Previous panels have established that knowledge of a complainant's trademark at the time of the registration of a domain name involving that trademark proves bad faith. (See Caixa D'Estalvis i Pensions de Barcelona ("La Caixa") v. Eric Adam, WIPO Case No. D2006-0464). In light of the reputation of Complainant's trademarks, the direction of the disputed domain name towards a website imitating Complainant's official website proves that Respondent was aware of the existence of ACCOR and ACCORHOTELS. Additionally, a quick trademark search on "ACCOR" and "ACCORHOTELS" would have revealed to Respondent the existence of Complainant and its trademarks.
Respondent did not reply to Complainant's contentions.
In accordance with paragraph 4 of the UDRP, Complainant must prove its assertions with actual evidence demonstrating:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
The Panel finds that Complainant owns trademark rights throughout the world for the ACCOR and ACCORHOTELS marks and operates in several places, including London.
The disputed domain name <accorhotels.london> contains Complainant's well-known trademarks ACCOR and ACCORHOTELS plus the gTLD ".london", which, in this case, increases the level of confusion.
Therefore, the Panel finds that the disputed domain name is identical or confusingly similar to the trademarks ACCOR and ACCORHOTELS in which Complainant has rights, satisfying the condition of the Policy paragraph 4(a)(i).
The Panel finds that Respondent lacks any rights or legitimate interests in the disputed domain name since it is not known by the name "Accor" or "Accorhotels". Likewise, the Panel finds that Complainant has not authorized Respondent to use the ACCOR or ACCORHOTELS marks in any manner.
Respondent did not respond to the Complaint. Consequently it did not provide any evidence or circumstances to establish that it has rights or legitimate interests in the disputed domain name, according to paragraph 4(c) of the Policy.
The Panel finds that Respondent did not demonstrate use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not denied Complainant's contention that the website at the disputed domain name is a fraudulent imitation of the Complainant's official site, and as such the Panel accepts this contention. The Panel observes that if the booking section of Respondent's website is really operational, it will allow Respondent to obtain confidential information like credit card numbers and personal identification numbers from Complainant's clients, which can harm not only Complainant's business, but also Internet users seeking Complainant's well-known services.
Therefore, the Panel concludes that Respondent has no rights or legitimate interests in respect of the disputed domain name under paragraph 4(a)(ii) of the Policy.
A non-exhaustive list of factors constituting evidence of bad faith registration and use is set out in paragraph 4(b) of the Policy, including paragraph 4(b)(iv), which indicates that bad faith exists where Respondent, by using the disputed domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant's mark. The Panel finds that the likelihood of confusion created by Respondent by directing Internet users to a website imitating Complainant's official one could lead them to believe that <accorhotels.london> is Complainant's official website.
Bad faith can also be found where Respondent "knew or should have known" of Complainant's trademark rights and nevertheless registered a domain name involving Complainant's mark in which he had no rights or legitimate interests. In this case, the Panel finds that it is highly unlikely that Respondent did not know of the well-known ACCOR trademark, especially in light of the content of the website "www.accorhotels.london".
In addition, the Panel also agrees that there is substantial authority that registration of a domain name that is confusingly similar to a well-known trademark, by any entity that has no relationship to that mark, is itself sufficient evidence of bad faith registration and use.
Moreover, the Panel finds that although using privacy services alone is not accepted as a sign of bad faith, it has been found in many cases that such usage, in conjunction with other factors, may indicate bad faith. See WSFS Financial Corporation v. Private Registrations Aktien Gesellschaft 2, WIPO Case No. D2012-0033. In the circumstances of this case, the Panel finds that Respondent's use of a privacy shield to register the disputed domain name is additional evidence of Respondent's bad faith.
In conclusion, the condition of paragraph 4(a)(iii) of the Policy has been satisfied.
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, <accorhotels.london> be transferred to Complainant.
Luiz E. Montaury Pimenta
Sole Panelist
Date: March 3, 2016