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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor, Société Anonyme à Directoire v. Calbis
Case No. D2002-0259
1. The Parties
The Complainant in this administrative proceeding is Accor, Société Anonyme à Directoire et Conseil de surveillance, 2 rue de la Mare Neuve, F-91000 Evry, France.
The Respondent is Calbis, Gulpinar, Dalyan, Mugla 48840, Turkey.
2. The Domain Name and Registrar
The domain name in dispute is <clubcoralia.com>.
The Registrar with which the domain name is registered is eNom, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complaint on March 19, 2002, by e-mail and on March 27, 2002, in hardcopy. The Center had acknowledged receipt thereof on March 19, 2002.
On March 21, 2002, the Center sent the corresponding Request for Registrar Verification in connection with this case to eNom, Inc. On March 22, 2002, the Registrar's verification response confirmed that the Registrant was Calbis, that the domain name <clubcoralia.com> was in "lock" status, but also advised that the Registrar had not yet received a copy of the Complaint. The Center requested therefore the Complainant on that same date to forward a copy thereof. The Complainant proceeded accordingly on March 25, 2002.
On March 26, 2002, after having verified whether the Complaint was satisfying the formal requirements, the Center sent to the Complainant a Complaint Deficiency Notification as the Complaint had not been submitted in four copies pursuant to Paragraph 3 (b) of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and Paragraph 3 (c) of the Supplemental Rules, did not identify the registrar with which the domain name was allegedly registered at the time the Complaint was filed according to Paragraph 3 (b) (vii) of the Rules, did not include a submission by the Complainant to the jurisdiction of the courts in at least one specified Mutual Jurisdiction (as the Registrar is incorrectly identified) as required by Paragraph 3 (b) (xiii) of said Rules and as the domain name at stake was not registered with eNom according to information received by the Center from the concerned registrar. The Center also sought clarification from the Complainant in respect of the domain name wording.
On March 28, 002,the Complainant filed by e-mail with the Center the Amended Complaint that incorporated the changes and clarifications requested.
On April 4, 2002,the Center notified by e-mail, facsimile and courier the Commencement of Administrative Proceeding to the Parties, in accordance with Paragraph 4 of the Rules.
On April 25, 2002,the Center issued by e-mail the Notification of Default to the Respondent for having failed to submit a response to the Complaint within the deadline granted.
On May 28, 2002,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 the latter had signed and forwarded to the Center on May 6, 002, statement of acceptance and declared his impartiality and independence in this matter.
Transmission of the file to the Sole Panelist was made on May 8, 2002,by e-mail and registered post, hard copy of which was received by the undersigned a few days later.
4. Factual Background
The Complainant is the owner of over 80 registered trademarks throughout the world (Complainant's Annex 3), or figurative trademarks used in connection with the verbal trademarks "CORALIA".
In particular, the Complainant is the owner of the following trademarks :
- "CORALIA", French trademark, registration number 92437932 (Complainant's Annex 4), October 16, 1992, this mark designates several goods such as soaps, perfumes, essential oils, cosmetics (class 3), jewels (class 14), printed matter (class 16), clothing, footwear, headgear (class 25) and several services such as advertising, distribution of samples (class 35), communications by computer terminals (class 38), education, providing of training, entertainment, sporting and cultural activities (class 41), hotels, hotel reservations, restaurants, beauty and hairdressing salons, or sanatoriums (class 42);
- "CORALIA", French trademark number 93497546 (Complainant's Annex 5), registered on December 21, 1993, this mark designates soaps, perfumes, essential oils, cosmetics (class 3), jewels (class 14), printed matter (class 16), clothing, footwear, headgear (class 25) and services of the classes 35 (advertising, distribution of samples), 38 (communications by computer terminals), 39 (travel and tourist offices, sightseeing tourism, arranging of tours, of cruises, booking of seats for travel), 41 (education, providing of training, entertainment, sporting and cultural activities), 42 (hotels, hotel reservations, restaurants, beauty and hairdressing salons, or sanatoriums);
- "CORALIA", international trademark, registration number 622008 (Complainant's Annex 6), dated August 3, 1994, this mark indicates the same goods and services than the French mark number 93497546 and is available in several countries, including Benelux, Cuba, Egypt, Italy, Morocco, Monaco, or Portugal;
- CORALIA, international trademark, number 610695 (Complainant's Annex 7), registered on December 8, 1993, this mark is available in Austria, Benelux, Switzerland, China, Cuba, Germany, Egypt, Spain, Italy, Morocco, Monaco, Mozambique, Portugal and Vietnam; the services designated are the services of travel and tourist offices, sightseeing tourism, arranging of tours, of cruises, booking of seats for travel (class 39), education, providing of training, entertainment, sporting and cultural activities (class 41), hotels, hotel reservations, restaurants, beauty and hairdressing salons, or sanatoriums (class 42).
5. Parties’ Contentions
The Complainant submits the following :
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, because :
- the domain name in issue includes the Complainant’s "CORALIA" trademarks;
- the domain name is identical to the Complainant’s "CORALIA" trade mark but for the additional word : "club"; the word "club" means "association" or "group of persons", so this term is generic; that’s why the use of this additional word does not exclude the likelihood of confusion with the "CORALIA" trademarks;
- with regard to the extensive reputation throughout the world of the mark "CORALIA", consumers will obviously be led to think that the titular of the domain names forms a partnership with the Complainant, although they could be competitors as the trademark CORALIA is used in Turkey;
(ii) the Respondent has no legitimate interest or rights in the domain name, because :
- the Complainant has some rights on the term "CORALIA" as a trademark since 1992 and has not licensed or otherwise permitted the Respondent to use any of its trade marks, nor has it licensed or otherwise permitted the Respondent to apply for or use any domain name incorporating any of those marks; no agreement, whether written or oral, has been made between the Complainant and the Respondent;
- the Complainant acquired rights in its mark before the domain name registration by the Respondent; indeed, the domain name in issue has been registered on April 11, 2001, whereas the Complainant has rights in the French trademark CORALIA since October 16, 1992,
- the Respondent is the owner and the manager of an hotel; therefore, the Complainant has ordered a worldwide search to check his rights on the mark CORALIA for the services of hotels and restaurants, and more generally the services of the classes 42 and 43 which has not revealed any mark "CORALIA" registered by the Respondent in any country and especially in Turkey; consequently, before the domain name was registered, the Respondent did not carry on any business and was not commonly known by any of the domain name or any other name consisting of "CORALIA";
- the Complainant makes a commercial use of its trademarks in Turkey, where the Respondent is located since it is the owner of two clubs Coralia in Turkey, one in Bodrum, the other in Tekirova;
- the Respondent is not making a legitimate non-commercial or fair use of the domain name, since no web site is attached; in fact, the domain name is not being used at all.
(iii) the Respondent registered the domain name and is using it in bad faith, because :
- the Respondent has not been known by the domain name at any point prior to its registration of the domain names; on the other hand, the Complainant has an international presence through its Internet web sites : <coralia.com>, <coralia.fr>, >accortravel.com>, or <accor.com> which offers many information about the hotels, restaurants, residences through the world, and allows to consumers to choose their destinations, rent a residence, or register their reservations;
- the association of the term "CORALIA" and a word describing the Complainant’s business activities is likely to be chosen only by legitimate traders, in agreement with the Complainant;
- the domain name is not active; indeed, there is no web site attached to said domain name, it lead to a shift of message error, as set forth in the affidavit drawn by a bailiff;
- given the distinctive nature of "CORALIA", the reputation of the Complainant, third international leader in the economic sector of hotels and restaurants, the number of hotels and clubs around the world (about 200 hotels and clubs in 35 destinations), the Respondent couldn’t ignore that the Complainant had rights on the term "CORALIA"; the Respondent has therefore registered the domain name in issue in bad faith; the use or even existence of the domain name is likely to create a confusion; searches in the Whois databases by consumers would make them believe that the Respondent is the Complainant or that they have formed a partnership, whereas they could be competitors;
- Consumers can not obtain some information since the web site is not active; besides, this domain name has been registered by a competitor; as a result, the business of the Complainant can be disrupted by the existence of the domain name in issue.
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; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent's domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements is 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. Identical or Confusingly Similar to the Mark
As such, there is no strict identity between the Complainant' trade and service marks "CORALIA" and the domain name <clubcoralia.com>.
Relying on Viacom International Inc. v. Elephantronics, WIPO Case No. D2001-0921 (September 18, 2001) and Arthur Guinness Son & Co. (Dublin) Limited v. Tim Healy/BOSTH, WIPO Case No. D2001-0026 (March 23, 2001), the Complainant submits that likelihood of confusion has been admitted in such instances and that, in presence of a trademark combined with generic terms referring to or calling to mind the goods or services offered by the Complainant, the disputed domain names were found confusingly similar to the opposed trademarks.
The Sole Panelist is of the view that there is no reason to depart from such an approach in the present case. In effect, the Complainant's mark "CORALIA", preceded by the generic term "club" is such as to entertain confusion among consumers. <clubecoralia.com> is therefore considered as confusingly similar to the trademark "CORALIA".
Furthermore, the Complainant has established its rights in trade and service marks "CORALIA" with various registrations for such a name worldwide (see Complainant's Annexes 3 to 7).
B. Rights or Legitimate Interests of the 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. Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009 (February 29, 2000) p. 6 or Isabelle Adjani .v. Second Orbit Communications, Inc., WIPO Case No. D2000-0867, (October 4, 2000) p. 6.
It is the Sole Panelist’s finding that the Complainant has established that the trade and service mark "CORALIA" has been known worldwide for a significant period of time. Furthermore, absent evidence to the contrary, the Complainant has not granted any license or otherwise permitted the Respondent to use such trade and service marks or to apply for any domain name incorporating the said trade and service marks.
Under those particular 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 pointed out, 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 addition, the Respondent has not disputed any of the Complainant's contentions mentioned above.
Considering the circumstances of the case, the Sole Panelist finds that the Respondent, by registering the disputed domain name, keeping it inactive (see Complainant's Annex 19) and not responding to the Complainant's letters in any manner whatsoever (see Complainant's Annexes 13, 14 and 18) has adopted a behavior which amounts to bad faith within the meaning of Paragraph 4 (b) of the Policy and, especially, to subparagraph (ii).
Transfer of the domain name <clubcoralia.com> to the Complainant shall therefore be ordered.
In light of the foregoing, the Sole Panelist decides that the domain name registered by the Respondent is confusingly similar to the corresponding trademarks 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 <clubcoralia.com> shall be transferred to the Complainant.
Dated: June 11, 2002