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WIPO Arbitration and
ADMINISTRATIVE PANEL DECISION
ACCOR v. Park Junghee
Case No. D2004-0478
1. The Parties
The Complainant is ACCOR, Evry, France, represented by Cabinet Dreyfus & Associйs, France.
The Respondent is Park Junghee, Gangwon-Do, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <sofitelresort.com> is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2004. On July 1, 2004, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On July 2, 2004, Tucows transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing details for the administrative, billing, and technical contact. 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”).
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 July 6, 2004. In accordance with the Rules, paragraph 5(a), the due date for a response was July 26, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on July 28, 2004.
The Center appointed Zbynek Loebl as the sole panelist in this matter on August 4, 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 information is derived from the Complaint and the supporting evidence and materials submitted in the Complaint.
The Complainant, ACCOR, is a company well-known worldwide in the field of hotels and restaurants. ACCOR owns more than 4,000 hotels and restaurants around the world, including in Korea, where they are operated under famous trademarks such as SOFITEL, MERCURY, NOVOTEL, IBIS, FORMULE 1, RED ROOF INNS, and MOTEL 6.
The Complainant is the owner of numerous trademark rights on the name “Sofitel” in many countries, including Vietnam, France, and the USA. A list of trademarks including SOFITEL is included in Annex 7 of the Complaint.
The Respondent registered the disputed domain name <sofitelresort.com>, which does not connect to any active website. The disputed domain name includes the full name “sofitel” and a generic name “resort”.
The Complainant tried to communicate with the Respondent, but without much success. The only response the Complainant received was an e-mail offer to sell the disputed domain name, which is included in Annex 6 of the Complaint. The Complainant sent a registered letter to the address indicated by the Respondent and this letter was returned to the Complainant due to the fact that the “address [is] unknown,” as shown in Annex 4 of the Complaint. Nevertheless, a notification of Complaint along with a copy of Complaint (with annexes) sent to the Respondent by the Center through FedEx was delivered to the Respondent’s address.
The Respondent has made no response to the Complainant’s allegations,
despite being properly served with the Complaint.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar with a registered trademark of the Complainant; and that the Respondent has no legal rights or legitimate interests in the disputed domain name; and that the Respondent registered and uses the disputed domain name in bad faith.
As evidence that the disputed domain name is confusingly similar with the registered
trademark of the Complainant, the Complainant enclosed evidence of multiple
registrations of trademarks SOFITEL in different countries. The Complainant
further argues that the combination of the name “sofitel” with a
generic word “resort,” closely connected with business activities
of the Complainant, adds to the confusing character of the disputed domain name.
As evidence that the Respondent has no legal rights or legitimate interests in the disputed domain name, the Complainant draws the Panel’s attention to the following: (i) the Respondent is not affiliated with the Complainant in any way; (ii) the Respondent has no prior rights or legitimate interests in the disputed domain name, the trademark rights of the Complainant preceded the registration of the disputed domain name; (iii) the Respondent is not known under the name “Sofitel” or any similar term, the disputed domain name directs to a dormant website; and (iv) the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name. Due to the fact that the disputed domain name is so identical to the famous trademarks of the Complainant, the Respondent could not reasonably pretend it was intending to develop a legitimate activity.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Since the Respondent has not filed any response and consequently has not contested any of the Complainant’s contentions, this case shall be decided based on the allegations and documents submitted by the Complainant.
Under paragraph 4(a) of the Policy, the Complainant must prove each of the allegations referenced in the headings of paragraphs A., B., and C. below.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name <sofitelresort.com> is
confusingly similar to the trademark SOFITEL registered by the Complainant in
several countries. The addition of “resort” is purely generic and
it does not prevent the confusing nature of the disputed domain name (see, e.g.,
Telstra Corporation Limited v. Ozurls, WIPO
Case No. D2001-0046). In addition, in this case the confusion is heightened
because the added generic word is descriptive of the Complainant’s business
activity (ACCOR v. Tigertails Partners, WIPO
Case No. D2002-0625).
B. Rights or Legitimate Interests
The Panel finds that the Complainant has presented evidence and argued convincingly that the Respondent has no rights or legitimate interest in the disputed domain name. By not submitting a response, the Respondent failed to demonstrate any rights or legitimate interests in the disputed domain name. Based on the arguments and evidence brought by the Complainant, described in Sections 4 and 5 above, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Based on the evidence presented by the Complainant, the Panel considers that the Respondent registered the disputed domain name in bad faith.
As sufficient evidence of bad faith, the Panel considers the fact that the Respondent registered the disputed domain name corresponding to a famous name in his resident country and city and added a generic word descriptive of the Complainant’s business. These facts present a reasonable basis to conclude that the Respondent knew or must have known of Sofitel’s hotel chain at the time he registered the domain name in infringement of the Complainant’s rights.
In addition, the Respondent offered the disputed domain name for sale to the
Complainant without making any active use of the disputed domain name. Such
conduct has been recognized in many UDRP decisions as prima facie evidence
of bad faith (e.g., Telstra Corporation Limited v. Nuclear Marshmallows,
WIPO Case No. D2000-0003).
Moreover, the use, including passive holding, of the disputed domain name may
clearly disrupt the business of the Complainant, e.g., through confusion of
Internet users wanting to make reservations via the disputed domain name (e.g.,
ACCOR v. Jose Manuel Fernandez Garcia, WIPO
Case No. D2002-0988).
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 <sofitelresort.com>
be transferred to the Complainant.
Dated: August 17, 2004