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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ACCOR v. PC Communication Ltd., Pierre Jean.
Case No. D2000-1580
1. The Parties
The Complainant is ACCOR, rue de la Mare Neuve 2, 91000 Evry, France.
The Respondent is PC Communication Ltd., Pierre Jean, 305 Holdenhurst road, Bournemouth, BH8 8BX, United Kingdom.
2. The Domain Name and Registrar
The domain name in dispute is <novotel.net>.
The Registrar with which the domain name is registered is Register.com, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complaint on November 16, 2000 by e-mail and in hardcopy on November 20, 2000.
On November 27, 2000, the Center sent the corresponding Request for Registrar Verification in connection with this case to Register.com. On December 4, 2000, the Registrar's verification response confirmed that the Registrant was Pierre Jean of PC Communication Ltd. and that the domain name <novotel.net> was in "active" status.
On December 6, 2000, the Center verified that the Complaint satisfied the Formal Requirements of the Policy, Rules and Supplemental Rules.
Accordingly, the Center notified on that same date by courier and e-mail the Complaint and Commencement of Administrative Proceeding to the Respondent, in accordance with Paragraph 4 of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules").
On December 27, 2000, the Center issued by e-mail the Notification of Default to the Respondent for having failed to submit a response within the deadline granted in this matter.
On January 5, 2001, the Center proceeded with the appointment of the Administrative Panel pursuant to Paragraph 6 of the Rules and advised the Parties of the appointment of the undersigned as sole panelist in accordance with Paragraph 6 (f) of said Rules, after he had signed and forwarded to the Center, on January 4, 2001, a statement of acceptance and declared his impartiality and independence.
Transmission of the file to the Sole Panelist was made on January 5, 2001 by e-mail and registered post, hard copy of which was received by the undersigned few days later.
The Sole Panelist forwarded his decision to the Center within the time limit fixed.
4. Factual Background
The Complainant is the owner of the following trademark(s) or service mark(s) :
(i) French trademark registration "NOVOTEL" N° 1.596.591 filed on June 11, 1990 (renewed) applied to goods and services of classes 11, 19, 20, 28, 29, 36, 41 and 42;
(ii) French trademark registration "NOVOTEL" N° 92407147 of February 25, 1992 in classes 16, 39 and 42;
(iii) United Kingdom trademark registration "NOVOTEL" N° 1.572.072 of January 7, 1994 in class 42;
(iv) United Kingdom trademark registration "NOVOTEL" and design N° 1.410.847 of January 15, 1994 in class 42.
All these marks are applied to goods and services in the field of hotel and restaurant, and especially in connection with hotels and restaurants in class 42 (see Complainant's Annex 3).
5. Parties’ Contentions
The Complainant mainly submits that :
(i) the domain name <novotel.net> is identical to the trademarks "NOVOTEL" in which it claims rights;
(ii) the Respondent has not demonstrated any legitimate interest in the use of the domain name in dispute; it could not ignore the trademarks rights of the Complainant on the term "NOVOTEL" due to its business involvements in the field of property maintenance covering all trades for hotels, restaurants and shops; furthermore, the trademark "NOVOTEL" is well known throughout the world to designate, in particular, hotels; as a result, the use by the Respondent of the domain name "novotel.net" can only lead to a confusion for consumers. The public will necessarily consider that there exists a link between the hotels "NOVOTEL" and the services of property maintenance covering hotels; in fact, said domain name is likely to disrupt the business of the Complainant, by using the domain name "novotel.net", the Respondent has intentionally attempted to attract for financial gain, Internet users to the registrant’s web site or other on-line location, by creating a likelihood of confusion with the Complainant’s mark "NOVOTEL" as to the source of affiliation of the registrant’s web site;
(iii) the Respondent has registered and used the domain name <novotel.net> in bad faith; before introducing said proceedings, the parties have entered into negotiation during the course of which the Complainant offered to purchase the domain name "novotel.net" for an amount of FF. 5.000 in order to cover the Respondent’s costs; the latter replied in asking for about FF. 500.000 which obviously is a valuable consideration in excess of the domain name registrant’s out-of-pocket costs directly related to the domain name; besides, the domain name "novotel.net" was registered in order to prevent the Complainant, owner of the trademarks "NOVOTEL", from reflecting the mark in a corresponding domain name.
Hence, the Complainant concludes that it is entitled to the transfer of the domain name in its favor.
The Respondent has not submitted any response to the Complaint.
6. Discussion and Findings
Paragraph 4 (a) of the Uniform Domain Name Dispute Resolution Policy ("the Policy") sets forth three requirements which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(i) Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the domain name;
(iii) Respondent's domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceedings that each of the aforesaid three elements are present so as to warrant relief, according to Paragraph 4 (a) of the Policy.
The Administrative Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to Paragraph 15 (a) of said Rules.
A. Identity or Confusing Similarity
There is no doubt that there is identity between the Complainant's trademarks <NOVOTEL> and the domain name <novotel.net>.
B. Rights or Legitimate Interests of Respondent
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to Paragraph 4 (c) of the Policy, any rights to and/or legitimate interests in the domain name in dispute. This entitles the Administrative Panel to draw any such inferences from such default as it considers appropriate pursuant to Paragraph 14 (b) of the Rules (see e.g. Cases Nos. D2000-0009, p. 6 or D2000-0867, p. 6).
As a matter of fact and absent evidence to the contrary, the Complainant has not granted any license or otherwise permitted the Respondent to use his trademark or to apply for any domain name incorporating the said mark.
Under those circumstances, the Sole Panelist is unable to find any evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the domain name at stake.
C. Registration and Use in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following behaviors is sufficient to support a finding of 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; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
As already mentioned, the Complainant has alleged that each of the circumstances listed above are present in the instant matter.
In the Sole Panelist's view, the exchange of correspondence that took place between the Parties on October 17 and 18, 2000 and filed by the Complainant in this matter (Complainant's Annex 5) does not clearly suggest that the Respondent has acquired the domain name in dispute for the purpose of selling or transferring it to the Complainant for a valuable consideration in excess of the out-of-pocket costs directly related to such domain name; the Sole Panelist interprets the Respondent e-mail of October 18, 2001 the relevant part of which is the following
"…you will have to come with a better offer, there is no way I infringe the right of Accord and I am prepared to go to any High Court to prove the contrary, that I do not infringe anyone rights, and your client legal costs will be adding two zero or more in top of this ridiculous offer you made today, after going to hight court then to appeal court…"
as simply meaning that the latter is ready to defend its own rights in Courts at the Complainant's costs.
However as submitted by the Complainant and supported by evidence (Complainant's Annex 5), "NOVOTEL" is an internationally well known mark, especially in hotels services, - that the Respondent could not ignore being itself involved and active in the field - and the website to which the domain name points offers products similar to those for which the Complainant's trademarks are registered; it can also be assumed - as impliedly submitted by the Complainant - that the Respondent is deriving financial benefit from the use of the domain name at stake. The Sole Panelist concludes therefore that these factors and other circumstances invoked by the Complainant in fact indicate that Respondent has intentionally attempted to attract, for commercial gain, Internet users to the website or websites to which the domain name points, by creating a likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation or endorsement of Respondent's website, within the meaning of Paragraph 4(b) (iv) of the Policy (see, e.g., similar case Case No. D2000-1271, Nokia Corporation v. Private).
Complainant also suggested that the registration and use of the domain name at issue has been made with the purpose of disrupting the business of Complainant. The Sole Panel finds, however, that at this point of time such a suggestion is hardly supported by evidence.
In any case and as already mentioned above, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance, which could demonstrate his good faith in the registration or use of the domain name in issue.
In light of the foregoing, the Sole Panelist decides that the domain name registered by the Respondent is identical to the corresponding trademark of the Complainant, that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name in issue has been registered and is being used in bad faith by the Respondent.
Accordingly, pursuant to Paragraph 4 (i) of the Rules, the Sole Panelist requires that the registration of the domain name "novotel.net" shall be transferred to the Complainant.
Dated: January 18, 2001