WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Accor v. Tomas Kunak

Case No. D2019-1204

1. The Parties

The Complainant is Accor, France, represented by Dreyfus & associés, France.

The Respondent is Tomas Kunak, Czech Republic.

2. The Domain Name and Registrar

The disputed domain name <accorhorels.com> (the “Domain Name”) is registered with Ascio Technologies Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 27, 2019. On May 27, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 29, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 3, 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 June 7, 2019.

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 June 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 2, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 4, 2019.

The Center appointed Wolter Wefers Bettink as the sole panelist in this matter on July 10, 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.

4. Factual Background

The Complainant is a global hotel operator, founded in 1967, operating more than 4,500 hotels in 109 countries worldwide and around 660,500 rooms, from economy to upscale. The group to which the Complainant belongs includes hotel chains such as Fairmont, Raffles, Swissôtel, Sofitel, Pullman, Novotel, Grand Mercure and Ibis.

The Complainant is the owner of the following trademarks registration (the “Trade Marks”):

- European Union trade mark ACCORHOTELS No. 010248466 registered on March 20, 2012;

- International trade mark ACCOR No. 742032, registered on August 25, 2000 and duly renewed, designating, inter alia, Denmark, Czech Republic, China, Germany, Egypt, Italy and Russia;

- International trade mark ACCORHOTELS No. 1103847, registered on December 12, 2011, designating, inter alia, Australia, China, Russian Federation, Singapore and United States of America.

The Domain Name was registered on June 25, 2018 and redirects users to the website at “www.booking.com”. Booking.com is a competitor of the Complainant.

5. Parties’ Contentions

A. Complainant

According to the Complainant, the Domain Name substantially incorporates the Trade Marks in their entirety so that the Domain Name is identical or confusingly similar to the Trade Marks. The addition of the misspelled term “horels” is insufficient to avoid a likelihood of confusion, the Complainant submits as the substituted letter (‘r’ for ‘t’) does not significantly affect the appearance or pronunciation of the Domain Name. Furthermore, the Complainant contends, the extension “.com” is not to be taken into consideration when examining the identity or similarity between the Trade Marks and the Domain Name as it is a functional element.

The Complainant refers to a number of circumstances which in its view establish that the Respondent has no rights or legitimate interests in respect of the Domain Name. First, the Complainant states that the Respondent is not affiliated with the Complainant in any way and has not been authorized by the Complainant to use or register the Trade Marks or to seek registration of any domain name incorporating the Trade Marks. The Complainant further points out that the Respondent has no prior rights or legitimate interests in the Domain Name and that the registration of the Trade Marks preceded the registration of the Domain Name by many years. The Complainant submits that there is no evidence that the Respondent is commonly known by the Domain Name or the names “Accor” and “Accorhotels”.

In addition, the Complainant submits that the Domain Name is so confusingly similar to the Trade Marks that the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the Domain Name.

According to the Complainant, the Respondent has not made and is not making a legitimate noncommercial or fair use of the Domain Name and has not used the Domain Name in connection with a bona fide offering of goods or services. In this contention, the Complainant points out the fact that the Domain Name redirects towards the website “www.booking.com” which is a competitor’s booking hotels website. In this manner, the Complainant contends, the Respondent is taking unfair advantage of the Complainant’s rights and is capitalizing on the reputation and goodwill of the Trade Marks by misleadingly diverting Internet users to its own website.

As to bad faith registration, the Complainant submits that it is implausible that the Respondent was unaware of the Complainant and the Trade Marks when it registered the Domain Name, as the Complainant and the Trade Marks are well-known and the Trade Marks were registered well before the Domain Name. In addition, the Complainant contends, the composition of the Domain Name which includes a misspelling of the Trade Marks, clearly demonstrates the Respondent’s knowledge of the Complainant’s rights and its activities. The Complainant also submits that given the Complainant’s goodwill and renown, and the nature of the Domain Name and the redirection of the Domain Name towards a competitor’s website, the Respondent could simply not have chosen the Domain Name for any reason other than to deliberately cause confusion amongst Internet users as to its source in order to take unfair advantage of the Complainant's goodwill and reputation, which clearly constitutes bad faith.

According to the Complainant, by using the Domain Name, the Respondent was intentionally attempting to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Trade Marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. The Complianant concludes that these circumstances confirm that the Domain Name is both registered and used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has shown that it has registered rights in the Trade Marks. The Domain Name is confusingly similar to the Trade Marks as it incorporates the mark ACCOR, the main or only element of the Trade Marks, in its entirety. The misspelling of the trade mark ACCORHOTELS does not avoid a finding of confusing similarity between the Domain Name and the Trade Marks (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9; see also, inter alia, Schneider Electric S.A. v. Domain Whois Protect Service / Cyber Domain Services Pvt. Ltd., WIPO Case No. D2015-2333 and Tetra Laval Holdings & Finance S.A. v. Prince Amin, Access Point Technologies, WIPO Case No. D2016-1052). The generic Top-Level Domain (“gTLD”) “.com” is typically disregarded under the confusing similarity test, since it is a technical registration requirement (see WIPO Overview 3.0, section 1.11).

Therefore, the Panel finds that the Domain Name is confusingly similar to the Trade Marks in which the Complainant has rights.

B. Rights or Legitimate Interests

Under paragraph 4(c) of the Policy, the second element a complainant has to prove is that a respondent lacks rights or legitimate interests in a domain name. This may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. In order to satisfy the second element, the Complainant has to make out a prima facie case that the Respondent does not have rights or legitimate interests in the Domain Name. If the Complainant succeeds in doing so, the burden of production on this element shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the Domain Name. If the Respondent fails to come forward with such relevant evidence, the Complainant is deemed to have satisfied the second element (see WIPO Overview 3.0, section 2.1).

Based on the evidence and the undisputed submissions of the Complainant, the Panel concludes that the Respondent has not received the Complainant’s consent to use the Trade Marks as part of the Domain Name, is not commonly known by the Domain Name and has not acquired trade mark rights in the Domain Name. Since the Respondent uses the Domain Name to redirect users to a website of a competitor of the Complainant, there is no case of a bona fide offering of goods or services, nor a legitimate noncommercial or fair use.

In view of the above, the Panel concludes that the Complainant has established that the Respondent has no rights or legitimate interests in the Domain Name.

C. Registered and Used in Bad Faith

Based on the information and the evidence provided by the Complainant, the Panel finds that at the time of registration of the Domain Name the Respondent was or should have been aware of the Trade Marks, since:

- the Respondent’s registration of the Domain Name occurred 18 years after the registration of the earliest of the Trade Marks;

- the trade mark ACCOR has since the year 2000 been registered in the Czech Republic, where the Respondent is located;
- a simple trade mark register search, or even an Internet search, prior to registration of the Domain Name in its name would have informed the Respondent of the existence of the Trade Marks.

With regard to bad faith use, the Panel finds that the following circumstances taken together warrant a finding of bad faith use of the Domain Name:

- the probability that the Respondent was aware or should have been aware of the Complainant’s rights in the Trade Marks;

- the lack of a formal Response of the Respondent;

- the use of the Domain Name to redirect users to a website of a competitor of the Complainant, demonstrating that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Trade Marks as to the source, sponsorship, affiliation, or endorsement of the website at the Domain Name.

Therefore, the Panel concludes that the Domain Name has been registered and is being used in bad faith.

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 <accorhorels.com> be transferred to the Complainant.

Wolter Wefers Bettink
Sole Panelist
Date: July 24, 2019