The Complainant is Accor of Evry, France, represented by Dreyfus & Associés, France.
The Respondent is Central American SEO Ltd., Domain Management of Belize City, Belize.
The disputed domain name <ibishotel.co> is registered with Internetx Gmbh (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2011. On February 8, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 9 and 11, 2011, Internetx Gmbh transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 February 11, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 3, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 4, 2011.
The Center appointed Angela Fox as the sole panelist in this matter on March 16, 2011. 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 Complaint was filed in English and all correspondence between the Center and the parties in this case has been in that language.
Under Paragraph 11 (a) of the Rules, “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.”
In this case, the registration agreement as annexed to the Complaint is in German. However, the Complaint was filed in English and the Complainant submits that English is the appropriate language for the proceedings. In particular, the Complainant points out that the Respondent is based in Belize, where the official language is English, and that the Respondent corresponded with the Complainant in English prior to the Complaint being filed. Although the Complainant is itself a French company, it chose to submit the Complaint in English as the most widely-used language in international relations and a language with which the Respondent was clearly familiar. The Complainant submits, moreover, that the cost of having the Complaint and all the annexes translated into German would impose an unfair burden on the Complainant in circumstances where the Respondent is clearly familiar with English and is based in an English-speaking country.
In response to the Center’s enquiry after the Complaint was brought, however, the Registrar stated that the language of the registration agreement was in fact English. The Panel is therefore content that the proceeding has been brought in the appropriate language.
Insofar as there is any doubt on the issue, however, the Panel still concludes that the proceeding should be conducted in English, for the following reasons.
The Panel has an obligation to exercise its discretion on this point with care with the aim of ensuring fairness to both parties, taking into account factors such as the parties’ command of the relevant language, time and costs (see inter alia Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004).
In this case, both parties appear to be proficient in the English language, as is evidenced by the pre-action correspondence annexed to the Complaint. The Complainant is French and, were the Panel to require the proceedings to take place in German, would incur significant translation costs, a burden that does not appear to be appropriate in circumstances where the Respondent is based in an English-speaking country, is proficient with English and has no apparent connection with the German language. Taking all these factors into account, it does not appear that the Respondent will be prejudiced by the proceedings taking place in English rather than German, and that, on the contrary, to require the Complaint to be conducted in German would impose an additional burden of costs on the Complainant and would result in delay in the proceedings, consequences which do not, for the reasons already given, appear to be justified by the circumstances of the case.
The Panel will therefore consider and decide the Complaint in English.
The Complainant is a large international hotelier, based in France. It operates about 4,100 hotels in some 90 countries around the world, ranging from budget hotels to upscale establishments. As of 2009, it employed more than 150,000 and generated sales worth EUR 7,065 million. One of its international hotel chains is called Ibis.
The Complainant’s ibis website at “www.ibishotel.com” indicates that the Complainant operates more than 900 Ibis hotels around the world. According to the Complaint, this includes one Ibis hotel in Bogotá, Colombia. Annexed to the Complaint was a copy of the WhoIs details for the Complainant’s domain name <ibishotel.com>, showing that it has been registered since August 19, 1997. The Complaint also refers to the Complainant’s ownership of numerous trademark registrations for IBIS in countries around the world, including International Registration nos. 623070 and 541432, dating from August 22, 1994 and July 17, 1989 respectively. Details of these were annexed to the Complaint.
The disputed domain name, <ibishotel.co>, was registered by the Respondent, a company based in Belize, on July 20, 2010. It currently resolves to a blank page. According to the Complainant, the disputed domain name has never resolved to any other content.
When the Complainant learned of the registration of the disputed domain name, its French lawyers sent the Respondent a cease and desist letter by email on October 14, 2010, alleging that the registration of the disputed domain name infringed the Complainant’s trademarks and demanding transfer of the disputed domain name registration.
The Respondent replied by email on October 21, 2010 claiming that the disputed domain name was generic and had been registered with the intention of developing a website, the nature of which was not disclosed. The Respondent stated that the website would be launched in two weeks, but if the Complainant wished to purchase the domain name before then, the Respondent would be willing to sell it for “a fixed non-negotiable price of $995”. It indicated that once the website had gone live, it would no longer be willing to consider a sale for this amount.
The Complainant’s lawyers replied on November 4, 2010 stating that the disputed domain name was not generic and reiterating the Complainant’s demand for transfer free of charge. On November 6, 2010 the Respondent replied, stating that the development of its website was taking longer than expected, “so there is still time left” for the Complainant to accept its offer to sell the disputed domain name for $995. The Respondent added that “we are willing to engage in a legal battle over the rights to this domain if necessary but are convinced that you will find our $995 offer reasonable for both parties.”
The Complainant brought this administrative proceeding on February 4, 2011.
The Complainant contends that the disputed domain name is confusingly similar to a trademark in which it has rights. It submits that the disputed domain name contains the whole of the Complainant’s registered IBIS trademark combined with a generic term that refers to the Complainant’s core business as a hotelier and the non-distinctive Colombian domain name suffix, “.co”. The Complainant argues that the disputed domain name is confusingly similar to its IBIS trademark for hotel services, and moreover that the domain name suffix, as well as being non-distinctive, gives rise to a domain name that is inherently likely to be mistyped into browser bars by Internet users seeking the Complainant’s own website at “www.ibishotel.com”.
The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Complainant asserts that the Respondent is not affiliated with or authorized by the Complainant to register or use the disputed domain name, and is not commonly known by a name corresponding to the disputed domain name. According to the Complainant, there is no evidence that, prior to receiving notice of the dispute, the Respondent had used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The Complainant submits that there can be no plausible legitimate use of the disputed domain name by the Respondent, given the fame of the Complainant’s Ibis hotel brand (which the Complainant notes has been accepted by panels in other cases).
Finally, the Complainant argues that the disputed domain name was registered and has been used in bad faith. The Complainant submits that the Respondent must have known about the Complainant’s well-known IBIS hotel chain at the time the Respondent registered the disputed domain name; indeed, annexed to the Complaint were the results of a search for “ibis” on “www.google.fr” showing that all the hits disclosed on the first page of search results related to the Complainant’s hotels. The Complainant submits that the disputed domain name is so obviously connected with the Complainant’s well-known IBIS trademark that its adoption by the Respondent strongly suggests opportunistic bad faith. The fact that the disputed domain name could easily be mistyped by Internet users seeking the Complainant’s website by omitting the final “m” further supports this view, the Complainant asserts. Although the Respondent did not appear to have engaged in any active use of the disputed domain name, nonetheless the Complainant submitted that it’s passive holding should be found to be bad faith use in line with the decision in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, on the basis that the Complainant’s trademark had a strong reputation and was widely known, and the Respondent had not provided any evidence of actual or contemplated good faith use.
The Complainant also argued that the Respondent’s offer to sell the disputed domain name for USD 995 indicated that it had registered it primarily for the purpose of sale to the Complainant for valuable consideration in excess of the Respondent’s out of pocket expenses related to the disputed domain name, which further evinced registration and use in bad faith under paragraph 4 (b)(i) of the Policy. The Complainant also contended that the Respondent registered the disputed domain name in order to prevent the Complainant from reflecting its IBIS mark in a corresponding domain name.
The Respondent did not reply to the Complainant’s contentions and is in default. No exceptional circumstances explaining the default have been put forward. Therefore, in accordance with paragraphs 14 (a) and (b) of the Rules, the Panel will decide the Complaint and shall draw such inferences as it considers appropriate from the Respondent’s default.
Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the panel finds that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
All three elements must be present before a complainant can succeed in an administrative proceeding under the Policy.
The Complainant has proved that it owns registered trademark rights in IBIS in countries throughout the world dating from at least as early as 1989.
The disputed domain name contains the whole of the Complainant’s registered trademark, differing only in the addition of the generic word, “hotel”, and the non-distinctive Colombian domain name suffix “.co”. The word “hotel” directly describes the nature of the Complainant’s business under the IBIS trademark, and is not, therefore, sufficient to distinguish the disputed domain name from the Complainant’s trademark. Indeed, the combination of elements in the disputed domain name is inherently likely to cause Internet users to assume it is in some way linked to the Complainant and its Ibis hotel chain (see e.g. ACCOR, Société Anonyme à Directoire et Conseil de surveillance v. Tigertail Partners, WIPO Case No. D2002-0625, where the panel stated that “confusion is only heightened when the generic word added by Respondent is descriptive of the Complainant's goods or services marketed in relation to the trademark”; see also Jefferson Smurfit Group plc v. Stephen Davidson Inc., WIPO Case No. D2000-1117 and American Automobile Association, Inc. v AAA-Vacationsunlimeted, WIPO Case No. D2009-0373; to name but a few).
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered IBIS trademark.
The burden of proving absence of a right or legitimate interest in a disputed domain name falls on complainants, but panels have long recognized that the information needed to prove such a right or legitimate interest is usually in the possession of respondents.
In order to avoid requiring complainants to prove a negative, which will often be impossible, panels have accepted that once a complainant has established a prima facie case that a respondent lacks rights or legitimate interests, the respondent carries the burden of showing that he does indeed have such a right or legitimate interest (see, inter alia, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
In this case, the Complainant has put forward a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. There is nothing on the record to indicate that the Respondent might enjoy such a right or legitimate interest. As noted by the Complainant, there is no evidence that the Respondent has been commonly known by a name corresponding to the disputed domain name.
Moreover, there is no evidence that the Respondent has made any use of, nor any demonstrable preparations to use, the disputed domain name or names corresponding to it in connection with any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Despite the Respondent’s claims of an imminent website launch in its correspondence with the Complainant’s lawyers before the Complaint was filed, the disputed domain name does not appear ever to have linked to any content at all. Nor has the Respondent filed any evidence of the website development activity in which it claimed it was engaged in the pre-action correspondence with the Complainant’s lawyers.
The Respondent has not attempted to refute the Complainant’s assertion that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that it has none.
Paragraph 4 (b) (i) of the Policy provides that the following circumstance, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have 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 complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name.
Although the Complainant did not file any evidence in this proceeding directly supporting its claim that the IBIS trademark is well-known, the Complainant’s IBIS trademark has been acknowledged as such already in other UDRP proceedings (see inter alia Accor, Society Anonyme a Directoire et Conseil de Surveillance v. SEOCHO, WIPO Case No. D2002-0517; and also ACCOR v. Ata Kivilcim, WIPO Case No. D2006-1366 and Accor and SoLuxury HMC v. Domains by Proxy, Inc. and Therese Kerr, WIPO Case No. D2009-0243).
Moreover, it is clear from the Complainant’s website at “www.ibishotel.com” that the Complainant operates more than 900 Ibis hotels around the world.
Taking this into account, it is quite implausible that the Respondent would have registered a domain name comprising the Complainant’s IBIS trademark and a descriptive word directly relevant to the Complainant’s business, “hotel”, without knowledge of the Complainant and its Ibis hotel chain. Moreover, the omission of the final “m” is a common and predictable typographical error for Internet users typing website addresses into their browser bar, and in the Panel’s view, the disputed domain name is inherently likely, and indeed calculated, to mislead Internet users attempting to type the Complainant’s own website address at “www.ibishotel.com” into an Internet browser bar.
The correspondence annexed to the Complaint shows that when approached by the Complainant with a cease and desist demand, the Respondent immediately offered to sell the disputed domain name to the Complainant for USD 995.
Taking all of these factors into account, and in the absence of any plausible explanation to the contrary from the Respondent, the Panel concludes that the Respondent registered the disputed domain name in the hope of attracting the Complainant’s notice, for the primary purpose of selling it to the Complainant for a profit.
The Panel finds that the disputed domain name was registered and has been used in bad faith under paragraph 4 (b)(i) of the Policy.
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, <ibishotel.co>, be transferred to the Complainant.
Angela Fox
Sole Panelist
Dated: April 1, 2011