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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Accor v. Association Etre-Ensemble

Case No. D2001-0039

 

1. The Parties

The Complainant is Accor, a company organised under the French law, Tour Montparnasse, 33 avenue du Maine, 75755 Paris Cedex 15, France. The Complainant’s representative is Cabinet Wagret, 19 rue de Milan, 75009 Paris, France.

The Respondent, current owner of the domain name at issue is Association Etre-Ensemble, BP 1, F-37150 Chisseaux, France, whose administrative contact is Mr. Dominique Bremard. No representative has acted on behalf of the Respondent in this administrative proceeding.

 

2. The Domain Name and Registrar

The dispute concerns the domain name <e-accor.com>. The Registrar with which the domain name is registered is Easyspace Ltd., International Administration Center, Rosemount House, Rosemount Avenue-West Byfleet, Surrey KT146LB, United Kingdom.

 

3. Procedural History

A Complaint was filed with the WIPO Arbitration and Mediation Center (the Center) on January 9 and 11, 2001, respectively in electronic format and in hardcopy.

On January 15 and 19, 2001, the acknowledgement of receipt of the Complaint and a request for Registrar Verification were sent. The answer to that request was received from Easyspace Ltd., on January 22, 2001.

On January 22, 2001, the Notification of the Complaint took place and the administrative proceeding began. The compliance with the formal requirements of the Policy, Rules and Supplemental Rules has been checked. The Complainant has made the payment in the required amount to the Center.

The Respondent should have sent his response before February 14, 2001 but the Center did not receive any response within this time limit.

On February 14, 2001, the Notification of Respondent Default was sent by e-mail.

The sole Panelist accepted his appointment on February 22, 2001, and submitted a Statement of Acceptance and Declaration of Impartiality and Independence.

On February 26, 2001, the sole Panelist received from the Center the hard copy of the file.

This dispute is within the scope of the Policy and the Administrative Panel has jurisdiction to decide the dispute. The registration agreement pursuant to which the domain name was registered incorporates the Policy. The domain name was registered on April 2, 2000.

As the language of the domain name registration agreement is the English language and as the Complainant has filed its complaint in English, the proceeding will be conducted in English, pursuant to paragraph 11 (a) of the Rules.

The decision is issued within the time limit fixed by March 7, 2001.

 

4. Factual Background

The following facts have not been contested:

a) The Complainant has rights on several trademarks and namely on the following one :

French:

- Word trademark "ACCOR" No. 1,237,864 filed on May 13, 1983, renewed under the No. 1,237,864, applied to goods and services of Classes 16, 35, 39 and 42 ;

- Word trademark "ACCOR" No. 1,513,259 filed on September 28, 1998, renewed under the No. 1,513,259, applied to goods and services of Classes 5, 8, 9, 11, 18, 21, 24, 25, 28 and 37 ;

- Word trademark "ACCOR" No. 00/3,020,477 filed on April 10, 2000 in Class 38.

The goods and services distinguished by the trademarks above are mainly "hotels and restaurants", but the last mark is applied to "telecommunication services" and especially Internet services in Class 38.

Finally, the Complainant has also rights on several trademarks all over the world in Classes 16, 36, 37, 38, 39, 41 and 42.

(b) The Respondent registered on April 2, 2000, the domain name : <e-accor.com>.

 

5. Parties’ Contentions

(a) Complainant

Complainant states in its own words:

The Respondent’s registration consists of the Complainant’s name with the adjunction of the prefix "e-".

The only difference between the domain name and Complainant’s trademark is the "e-", which is rather trite in the Internet world.

According to the WIPO case-law, this prefix has become a generic or common descriptive term used to identify electronic commerce activity.

This adjunction should be considered has being insignificant and it would not affect the attractive power of the word "ACCOR" and the Respondent’s domain name

<e–accor.com> should be considered as confusingly similar to the Complainant’s trademark "ACCOR".

In addition some of the trademarks of the Complainant have been filed to designate services in Class 38.

The registration of that domain name could be considered as an infringement of the above French trademarks owned by the Complainant.

The Complainant points out that the trademark "ACCOR" which is also the commercial name or trade name of the Complainant is a well-known mark in the field of hotels and restaurants services. Therefore, the Complainant considers that the Respondent could not ignore the existence of the Complainant’s trademark.

Moreover, the Complainant points out that the Respondent has never answered neither to the cease-and-desist letters sent by the Complainant on June 6, 2000 and on August 16, 2000 nor to the numerous reminders sent on July 11, 2000, on September 4 and 13, 2000.

The Complainant points also out that the Respondent has already been condemned in a previous case involving the "Crйdit Lyonnais", for abusive registration of the domain name <e-creditlyonnais.com>. According to the Complainant, it seems that the Respondent recognised having registered the domain name

<e-creditlyonnais.com> "along with others". This attitude seems to be the typical cybersquatter’s behaviour.

The Complainant adds that finally, provided that the Respondent has engaged in a pattern of such conduct, it seems that the domain name has been registered in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name. So, the Complainant concludes that this amounts to be a registration in bad faith.

(b) Respondent

The Respondent did not file any Response to the Complaint and was notified of its default on February 14, 2001 without any later reaction.

 

6. Discussion and Findings

Paragraph 15 (a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:

"A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it seems applicable".

Paragraph 4(a) of the Policy states that, for a complaint to be granted, the Complainant must prove each of the following:

(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,

(ii) that the respondent has no rights or no legitimate interests in respect of the domain name; and,

(iii) that the domain name has been registered and used in bad faith.

Consequently, regarding each of the three above mentioned points :

(i) Identity or similarity

The prior trademarks of the Complainant "ACCOR" are identical or confusingly similar to the domain name "e-accor.com" registered by the Respondent, as the addition of the letter "e-", which is rather trite in the Internet world, would not affect the attractive power of the word "ACCOR".

Moreover, some of the trademarks belonging to the Complainant have been filed in International Class 38 to designate "communication services, telecommunication services" and it cannot be contested that domain names are intended for communication activities.

As an evidence, the registration of the domain name "e-accor.com" could be considered as a trademark infringement of the above French trademarks Nos. 1,237,864, 1,513,259, 00/3,020,477.

Finally, the Complainant, i.e. ACCOR, has been using its "ACCOR" trademark for several years in the area of hotels and restaurants services and the mark "ACCOR" could be considered as a well-know mark and protected according to article L. 713-5 of the French Intellectual Property Code.

Consequently, the domain name <e-accor.com> is similar to the trademarks in which the Complainant has rights and could generate confusion with the Complainant’s trademarks.

(ii) Rights or legitimate interests of the Respondent in respect of the domain name.

The Respondent has not been licensed, contracted or otherwise permitted by the Complainant, in any way, to use the "ACCOR" mark or to apply for any domain name incorporating the "ACCOR" mark nor as the Complainant acquiesced in any way to such use or application of the "ACCOR" mark by the Respondent.

Indeed, at no time, did the Respondent have authorisation to register the domain name <e–accor.com> or any of the other "accor" domain names.

The Respondent has not filed any response to the Complaint and, then, has not alleged any facts or elements to justify prior rights or legitimate interest in the said domain name <e-accor.com>.

Consequently, according to the file, it seems that the Respondent has no rights or legitimate interests in respect of the domain name <e-accor.com>, within the meaning of paragraph 4(a)(ii) and (c)(i-iii) of the Policy.

Finally, the Respondent has no right to register a domain name consisting of the well-know trademark of third party, i.e. the ACCOR company.

(iii) Registration and use in bad faith

The Policy (paragraph 4(b)) indicates that certain circumstances may, "in particular but without limitation", be evidence of registration and use of domain name in bad faith.

Among these circumstances are :

(i) that the domain name has been registered in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(ii) that the domain name has been registered primarily for the purpose of disrupting the business of a competitor.

So, considering that :

- the Respondent has never answered neither to the cease-and-desist letters sent by the Complainant or to the numerous reminders ;

- the Respondent has already been condemned in a previous case involving the "Crйdit Lyonnais" for abusive registration of the domain name

<e–creditlyonnais.com> (WIPO Case No. D2000-1426) ;

- the word "ACCOR" is a well-known mark all over the world and

- that the Respondent could not ignore the existence of the Complainant’s trademark,

The Panel concludes that the domain name <e-accor> has been registered in order to prevent the owner of the trademark, i.e. the ACCOR company, from reflecting the mark in a corresponding domain name.

Moreover, the Panel considers, according to previous decisions under the Policy, that the notion of "use in bad faith" must not be limited to positive actions and that the passive holding in relation to a domain name registration can, in certain circumstances, constitute also another ground of use of a domain name in bad faith (see WIPO Cases No. D2000-0003, D2000-0055, D2000-0098).

Although there is no active website corresponding to the domain name at issue, the Panel finds that the Respondent’ s silence and attitude constitute the use and registration in bad faith of the said domain name.

 

7. Decision

The Panel decides, based on its finding, that the Respondent in default has engaged in abusive registration of the domain name <e-accor.com>, for the foregoing reasons:

(a) that the domain name registered by the Respondent is quite similar to the trademark in which the Complainant has rights;

(b) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(c) that the Respondent’s domain name has been registered and used in bad faith.

Accordingly, pursuant to paragraph 4(i) of the Policy, the Panel requires that the Registrar Easyspace Ltd. transfers to the Complainant ACCOR the domain name <e-accor.com>.

 


 

Isabelle Leroux
Sole Panelist

Dated : March 6, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0039.html

 

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