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WIPO Arbitration and
ACCOR v. Olivete Hotel S.L.
Case No. D2003-1003
1. The Parties
The Complainant is ACCOR of Evry, France, represented by Cabinet Ores of Paris, France.
The Respondent is Olivete Hotel S.L. of Sevilla, Spain.
2. The Domain Name and Registrar
The disputed domain name <hotelacor.com> is registered with Go Daddy Software, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 18, 2003. On December 22, 2003, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On December 23, 2003, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the details for the administrative, billing, and technical contacts for the disputed domain name.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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"). The Panel notes that one of the requirements of the Rules is that the Complaint specifies the domain name in dispute (paragraph 3(b)(vi)). Paragraph 8 of the Complaint however states that this dispute concerns the domain name <hotelcor.com>. This clearly appears to be a mistake by the Complainant. The Complaint otherwise states, and argues on the basis that the dispute solely concerns the domain name <hotelacor.com>. Accordingly, the Panel confirms the Center's view that the Complaint satisfies paragraph 3(b)(vi) and the other requirements of the 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 January 5, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was January 25, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 5, 2004.
The Center appointed James A. Barker as the sole panelist in this matter on March 3, 2004. 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 following uncontested facts are taken from the Complaint.
The Complainant owns 4,000 hotels in 90 countries worldwide and mainly communicates on the Internet via the website at "www.accorhotel.com". The Complainant is the owner of a number of trademark registrations throughout the world. In Spain, the registered location of the Respondent, the Complainant is the owner of several international trademarks related to ACCOR’s hotels, restaurants, and related Internet services.
The Complainant sent a warning letter, dated November 28, 2003, by registered mail and by e-mail, to the Respondent, requesting the Respondent to transfer the disputed domain name and to cease operating the website at that domain name.
The registered mail and the e-mail version of the warning letter were delivered to the Respondent. The Respondent did not reply to the registered letter, despite a reminder sent by e-mail by the Complainant on December 4, 2003.
The Panel also notes that the facts of this case are almost identical to the
facts outlined in ACCOR v. Acortel s.l., WIPO
Case No. D2003-0711, involving the domain name <acorhotel.com> (referred
to in the Complaint). The decision in that case was for the transfer of the
domain name then in dispute.
5. Parties’ Contentions
The following is taken from the Complaint.
Identical or confusingly similar
The Complainant has rights in registered trademarks for ACCOR in relation to hotel and restaurant services. (Evidence of those marks was attached to the Complaint.)
The trademark ACCOR has been reproduced by adding the generic and descriptive term "hotel" and removing one "c", which does not avoid the risk of confusion between the disputed domain name and the Complainant’s marks. The public will think that the website at the domain name will lead to a website related to ACCOR’s hotel chain. The word "hotel" does not distinguish the domain name from the Complainant’s mark: the word "hotel" is merely descriptive of the Complainant’s business. (In support of this latter contention, the Complainant referred to ACCOR, Société Anonyme à Directoire et Conseil de surveillance v. Tigertail Partners, WIPO Case No. D2002-0625, concerning the domain name <hotelsofitel.net>.)
The Respondent is attempting to "typo-squat" on the Complainant’s trademarks by its use of the disputed domain name.
Rights or legitimate interests
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the ACCOR corporation in any way. The Respondent is not known under the name "hotelacor" or any similar term. The Complainant has not authorized the Respondent to use and register its trademarks and service marks, or to seek the registration of any domain name incorporating those marks.
Further, the Respondent has never used the term ACCOR in any way before or after the ACCOR corporation developed its hotel chain. As ACCOR is famous in Spain, the use of that mark, or a misleading variation of it, constitutes a trademark infringement and is necessarily made in bad faith.
Finally, the Respondent is not making any legitimate non-commercial or fair use of the disputed domain name. The domain name refers to an active website about hotel reservations, which demonstrates that the Respondent is attempting to divert Internet users from the official website of the Complainant.
Registered and used in bad faith
The disputed domain name was registered, and is being used, in bad faith. The Respondent knew or must have known of ACCOR’s hotel chain, at the time the Respondent registered the domain name. The domain name was registered by the Respondent in order to prevent the Complainant from reflecting its mark in a corresponding domain name.
The website linked to the disputed domain name demonstrates that the Respondent uses the disputed domain name in bad faith, as the website is about hotel reservations, which is precisely the activity of the Complainant.
ACCOR is a very famous hotel chain worldwide, including in Spain where the Respondent is located. Therefore, the registration of and use by the Respondent of the domain name for use in the same field of business, creates a likelihood of confusion with the Complainant’s mark. The registration by the Respondent was intended to tarnish the reputation of the Complainant’s mark.
The fact that the disputed domain name leads to a website about hotel reservations constitutes an act of unfair competition because, on accessing the site, the public will, in fact, reach offers made by competitors of the Complainant.
The Respondent did not reply to the Complainant’s contentions.
Under paragraph 14(a) of the Rules, in the absence of a Response, the Panel shall proceed to a decision on the Complaint. Under 14(b) of the Rules, in the absence of exceptional circumstances, a Panel shall draw such inferences as it considers appropriate from the failure of a party to comply with the Rules.
There are no exceptional circumstances in this case. Accordingly, subject to the discussion and findings below, the Panel infers that the Respondent does not deny the facts asserted and contentions made by the Complainant.
6. Discussion and Findings
Under the Policy, paragraphs 4(a)(i)-(iii), for the Complainant to have the disputed domain name transferred to it, the Complainant must prove that:
- the domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the domain name; and
- the domain name was registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has demonstrated that it has extensive rights in the mark ACCOR.
It is also notable that the Complainant has previously been a complainant in
numerous cases under the Policy in relation to its mark ACCOR (see for example:
Accor v. Association Etre-Ensemble, WIPO
Case No. D2001-0039; Société Accor contre M. Philippe Hartmann,
WIPO Case No. D2001-0007). The Complainant
has been a target for cybersquatters: which is itself evidence that the Complainant
has a reputation associated with its marks.
The domain name is confusingly similar to the Complainant's mark ACCOR. The omission of the "c", to change the mark ACCOR to ACOR, does not sufficiently distinguish ACOR from ACCOR for the purpose of the Policy. Both ACOR and ACCOR are visually and phonetically similar. Further, the addition of the word "hotel" to the domain name increases the confusing similarity between the domain name and the Complainant’s mark, because the word "hotel" is descriptive of the business associated with the Complainant.
B. Rights or Legitimate Interests
According to the Complaint, the Respondent operates an active website at the disputed domain name. The Respondent's website provides information in relation to the "Hotel Acor." The website states that the Hotel Acor is located in Sevilla, Spain.
Paragraphs 4(c)(i) and (ii) of the Policy relevantly set out circumstances that, if found by the Panel to be proved, provide evidence of a respondent's rights or legitimate interests in a domain name. Those circumstances are that:
"(i) before any notice to you of the dispute, your use of the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) you have been commonly known by the domain name, even if you have acquired no trademark or service mark rights."
In relation to Paragraph (4)(c)(i), the Respondent is clearly using the domain name in connection with an offering of services. Accordingly, under this paragraph, the Respondent’s rights or legitimate interests might be demonstrated if there is evidence that its offering is bona fide.
The Panel in ACCOR v. Acortel s.l., WIPO Case
No. D2003-0711, where the facts were highly similar to the present case,
decided that such an offering by the Respondent in that case was not bona
fide. This was decided on the basis of the following conditions: that the
Respondent in that case (1) used a name similar to the Complainant’s trademarks;
and (2) which was in relation to identical services; and (3) was in a country
where the Complainant has an established and extensive business conducted under
the trademarks. Each of those conditions are also satisfied in this case.
In relation to paragraph 4(c)(ii), the Complainant has stated that the Respondent is not known under the name "hotelacor." The Respondent in this case is registered as Olivete Hotel S.L. Although the web page suggests that the Respondent is obtaining some advantage by advertising the "Hotel Acor," the Respondent has not filed any evidence indicating that the Respondent is itself commonly known, within the meaning of paragraph 4(c)(ii), as Hotel Acor.
In relation to both paragraphs 4(c)(i) and (ii), it is also relevant that the
burden on the Complainant is to establish a prima facie case against
the Respondent. Once that prima facie case is established, the Respondent
has a case to answer. (For example, see the Panel discussion confirming this
approach in SES Astra S.A. v. Design Technology Ltd. (t/a Transcom ISP),
WIPO Case No. D2002-1078.) If the Respondent
is then unable or unwilling to answer the Complainant’s prima facie case,
a finding will be made that the Respondent has no rights or legitimate interests
in the disputed domain name. The Respondent in this case has made no response
to rebut the Complainant’s prima facie case.
Accordingly, the Panel finds that the Respondent has no demonstrated rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, if found by the Panel, are evidence of registration and use in bad faith. Paragraph 4(b)(iv) of the Policy relevantly provides that there is evidence of bad faith where, by using the domain name, the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of services on the website.
In relation to paragraph 4(b)(iv), the Complainant provided evidence of the wide use and reputation of its mark. The registration record for the domain name (as attached to the Complaint) was created on February 8, 2002. Without evidence to the contrary, the Panel accepts that date as being the date on which the disputed domain name was registered. The Complainant has provided evidence of international registrations (which also refer to prior national registrations) relating to its marks. Those registrations were made prior to the date of the registration of the domain name. It is also relevant that the Respondent offers the same type of services as the Complainant, and so would or ought to have been aware of the Complainant’s marks.
Accordingly, the Panel finds that, at the date of registration, the Respondent is likely to have known of the business of the Complainant. Knowing the business of the Complainant, the Respondent would have known that its registration of the disputed domain name would create a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of services on its website. The Respondent’s website is operating for commercial gain. In these circumstances, the Panel finds that there is bad faith under paragraph 4(b)(iv) 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, <hotelacor.com> be transferred to the Complainant, ACCOR.
James A. Barker
Dated: March 12, 2004