The Complainant is Accor, France, represented by Dreyfus & associés, France.
The Respondent is Li Hou Chang, China, self-represented.
The disputed domain names <accorhotrls.com> and <accorhptels.com> are registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 30, 2019. On July 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 31, 2019, 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 August 1, 2019, 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 August 5, 2019.
On August 1, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On August 2, 2019, 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 August 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 1, 2019. On August 12, 2019, the Center received an email communication from the Respondent. No substantive response was filed with the Center. On September 3, 2019, the Center informed the Parties that it would proceed to appoint the Panel.
The Center appointed Jonathan Agmon as the sole panelist in this matter on September 11, 2019. 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.
The Complainant, Accor, France, is a well-known French hotel operator. Since the Complainant was founded in 1967, the Complainant has acquired considerable reputation and goodwill worldwide, including in China. The Complainant operates some 4,800 hotels in 100 countries worldwide and around 660,500 rooms. The group includes hotel chains such as Fairmont, Raffles, Swissotel, Sofitel, Pullman, Novotel, Grand Mercure and Ibis. The Complainant also operates its activities in China where it has more than 350 hotels and around 68,402 rooms. Some of the domain names that the Complainant owns include <accor.com> and <accorhotels.com>.
The Complainant is the owner of several trademark registrations worldwide, including European Union and China:
- ACCOR (International Registration No. 742032) registered on August 25, 2000 protected in, inter alia, China;
- ACCORHOTELS (International Registration No. 1103847) registered on December 12, 2011 protected in, inter alia, Australia, China, Russia, Singapore and United States of America;
- ACCORHOTELS (Trademark No. 010248466) registered on March 20, 2012 in European Union;
The disputed domain names were both registered on February 14, 2019 and resolve to pay-per-click websites.
The Complainant’s contentions include the following:
The Complainant argues that the disputed domain names are confusingly similar to the Complainant’s ACCOR and ACCORHOTELS trademarks as the disputed domain names wholly incorporate the Complainant’s trademarks and there is intentional misspelling of the word “hotels” in the disputed domain names. The Complainant also argues that the generic Top-Level Domain (“gTLD”) “.com” may be disregarded under the confusing similarity test.
The Complainant also argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names as it has not licensed or permitted the Respondent to use any its trademark or register the disputed domain names.
The Complainant further argues that the disputed domain names were registered and are being used in bad faith as the Respondent had transferred the disputed domain names from a previous registrar to the current Registrar after the Complainant sent an email status of the disputed domain names to be put on hold and deactivated.
For all of the above reasons, the Complainant requests the transfer of the disputed domain name.
Other than an informal email communication of August 12, 2019, the Respondent did not respond or otherwise reply to the Complainant’s contentions.
Paragraph 11 of the Rules provides that:
“(a) 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 language of the Registration Agreement for the disputed domain name is Chinese.
The Complainant requested that the language of the proceeding be English.
The Respondent did not comment on the language of the proceeding, despite being notified in both English and Chinese regarding the language of the proceeding.
The Panel cites the following with approval:
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (See Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004).
The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding:
(i) The disputed domain name consists of Latin letters, rather than Chinese characters;
(ii) The Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language; and
(iii) The Respondent did not object to the Complainant’s request that English be the language of the proceeding.
Upon considering the above, the Panel determines that English be the language of the proceeding.
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain names <accorhotrls.com> and <accorhptels.com> integrate the Complainant’s ACCOR trademarks in its entirety (see Wal-Mart Stores, Inc. v. Kuchora, Kal, WIPO Case No. D2006-0033; Hoffmann-La Roche Inc. v. Andrew Miller, WIPO Case No. D2008-1345). The disputed domain names <accorhotrls.com> and <accorhptels.com> comprise the Complainant’s ACCOR trademark and a misspelling of the word “hotel”. The misspelling of the word “hotel” does not avoid a finding of confusing similarity with the Complainant’s trademarks.
Further, it is well established that the addition of the generic Top-Level Domain (“gTLD”) “.com” does not avoid a finding of confusing similarity between the Complainant’s trademarks and the disputed domain names. (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.)
Consequently, the Panel finds that the Complainant has shown that the disputed domain names are confusingly similar to the trademarks in which the Complainant has rights.
Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain names (See WIPO Overview 3.0, section 2.1).
In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain names and the Respondent has failed to assert any such rights or legitimate interests.
The Complainant has provided evidence that it owns trademark registrations long before the disputed domain names were registered and that it is not affiliated with nor has it licensed or otherwise permitted the Respondent to use the Complainant’s trademark (see LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2010-0138).
The Complainant also provided evidence that the Respondent is not commonly known by the disputed domain names (see WIPO Overview 3.0, section 2.3).
Further, the Respondent did not provide any explanation or evidence to show rights or legitimate interests in the disputed domain names to rebut the Complainant’s prima facie case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
The Complainant must also show that the Respondent registered and is using the disputed domain names in bad faith (see Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain names long after the Complainant registered its trademarks. According to the evidence filed by the Complainant, the Complainant has owned registration for the ACCOR and ACCORHOTELS trademarks since the year 2000. In view of the evidence filed by the Complainant, and the widespread use of the ACCOR and ACCORHOTELS trademarks, it is suggestive of the Respondent’s bad faith in these particular circumstances that the trademarks, owned by the Complainant, was registered long before the registration of the disputed domain names. Therefore, it is unlikely that the Respondent did not know of the Complainant’s mark prior to registration of the disputed domain names (see Sanofi-Aventis v. Abigail Wallace, WIPO Case No. D2009-0735).
Furthermore, the disputed domain names incorporate the Complainant’s trademark ACCOR in its entirety with what appears to be an intentional misspelling of “hotels” as “hotrls” and “hptels”. The disputed domain names could be arrived at by mere typographical errors committed by unsuspecting Internet users as the substituted letters “r” and “p” are proximate to the corresponding letters that they replace in the term “hotels” in a “qwerty” or “azerty” keyboard. Unsuspecting Internet users may be misled to the website at the disputed domain names when they commit such typographical errors. The Panel finds such act by the Respondent amounts to typo-squatting intended to confuse and/or mislead Internet users seeking or expecting the Complainant. Previous UDRP panels ruled that in such circumstances “a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site” (see Edmunds.com, Inc v. Triple E Holdings Limited, WIPO Case No. D2006-1095). To this end, prior UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith under paragraph 4(b)(iv) of the UDRP.
The Complainant has also submitted evidence that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark by showing that the disputed domain name <accorhotrls.com> and <accorhptels.com> redirect to “ww25.accorhotrls.com” and “ww25.accorhptels.com” that are parked pages containing pay-per-click links for hotels and hotel accommodations booking services that compete with the Complainant. In the particular circumstances of the present case, this is another clear indication of the Respondent’s bad faith.
The Complainant has also submitted evidence that prior to commencing proceedings, it had sent a cease and desist email to the previous registrar GMO Internet, Inc. d/b/a Discount-Domain.com and Onamae.com to request for disputed domain names to be put on hold and deactivated. The Respondent after the Complainant’s letter, transferred the disputed domain names to the current Registrar on May 21, 2019. In addition, the Respondent did not submit a substantive Response to the proceedings. Instead, on August 12, 2019, the Respondent replied by email in the Chinese language inquiring if the Complainant would receive a refund of USD 1,000 if the Parties reached a settlement.
As the Complainant’s ACCOR trademark is distinctive and noting the use of the disputed domain name, the Panel is of the view that under the particular circumstances of this case, the Respondent registered the disputed domain names with actual prior knowledge of the Complainant’s distinctive mark, which is further clear indication of the Respondent’s bad faith registration and use of the disputed domain names.
Based on the evidence presented to the Panel, including the registration of the disputed domain names long after the registration of the Complainant’s marks, the confusing similarity between the disputed domain names and the Complainant’s marks, the Respondent’s use of the disputed domain names, the fact that is no plausible good faith use the Respondent can put the disputed domain names to, the fact that no formal Response was submitted by the Respondent, the Panel draws the inference that the disputed domain names were registered and are being used in bad faith.
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 names <accorhotrls.com> and <accorhptels.com> be transferred to the Complainant.
Jonathan Agmon
Sole Panelist
Date: September 20, 2019