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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

ACCOR v. I&M Raamatupidamise O/Accora Consult OЬ

Case No. D2006-0650

 

1. The Parties

The Complainant is ACCOR, Evry, France, represented by Cabinet Dreyfus & Associйs, France.

The Respondent is I&M Raamatupidamise O/Accora Consult OЬ, Tallinn, Estonia.

 

2. The Domain Name and Registrar

The disputed domain name <accora.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 24, 2006. On May 26, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On May 26, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 19, 2006. The Center verified that the Complaint together with the amendment to 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 June 23, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 13, 2006. The Response was filed with the Center on June 30, 2006.

The Center appointed Ian Blackshaw as the sole panelist in this matter on July 11, 2006. 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 Complainant is the European leader and one of the world’s largest groups in travel, tourism and corporate services. The Complainant owns about 4,000 hotels in 90 countries worldwide. More particularly, the Complainant operates several hotels especially in India.

The Complainant owns and mainly communicates on the Internet via the website “www.accor.com” in order to allow Internet users a quick and easy finding and booking of its hotels. An extract of the website “www.accor.com” and of the Whois database for “www.accor.com” have been provided to the Panel.

The Complainant has noticed that the domain name <accora.com> “www.accorhoteles.com” has been registered. A Whois Database search revealed that this domain name was registered by the Respondent (Annex 1). The domain name <accora.com> “www.accorhoteles.com” was and is still linked to a search engine proposing links to travel, hotels and vacations websites, details of which have been provided to the Panel.

The Complainant sent a warning letter, dated August 23, 2005, by registered mail and by e-mail, to Metafusion.com – Mr. Shuhaib Shariff, asking him to transfer amicably the domain name, copies of which have been provided to the Panel.

The Respondent answered on August 24, 2005, stating he could not find any ACCORA trademark on the USPTO website. The Complainant explained to him on August 25, 2005, that the ground of the complaint was the well-known trademark ACCOR and not the trademark ACCORA. The Complainant provided the Respondent with all the international and US trademarks ACCOR (with the address of the website “www.uspto.gov” to find them), expecting to receive the confirmation of the transfer of the domain name after that (Annex 6).

The Complainant received no answer and sent another warning letter to Respondent on September 15, 2005 and 2 reminders on November 28, 2005 and December 13, 2005, again copies of which have been provided to the Panel.

The Respondent sent an email to the Complainant on December 13, 2005, alleging he had no intention of profiting from the Complainant’s trademarks and that he “sells generic and brand-able names to start-up companies”. He declared having bought the domain name from a seller for $2000 and was not willing to transfer it for free.

After many exchanges, no compromise has been found about the amount of the transfer in view of the fact that the Respondent does not own any trademark right.

The Complainant is the owner of numerous trademark rights throughout the world related to its ACCOR hotels, especially in the field of hotels and restaurants and of Internet services, including:

- French trademark ACCOR SERVICES, n° 003026598, filed on May 9, 2000 and covering goods and services in class 38 and 42.

- French trademark TICKET ACCOR SERVICES, n° 003498474, filed on October 31, 2003, and covering goods and services in class 9, 16, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45.

- French trademark TICKET ACCOR SERVICES, n° 003498425, filed on October 31, 2003, and covering goods and services in class 9, 16, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45.

- US trademark ACCOR n°75733607 filed on January 30, 1998 and covering services in classes 39 and 42.

- International trademark ACCOR, n° 742032, filed on August 25, 2000, and covering goods and services in class 38 (Internet specification).

- International trademark ACCOR n° 537520, filed on March 28, 1989, and covering goods and services in classes 5, 8, 9, 11, 18, 21, 24, 25, 28 and 37.

- International trademark ACCOR n° 480492, filed on November 10, 1983, and covering products and services in classes 16, 39 and 42 (hotels and restaurants services);

- International trademark ACCOR + logo N° 687060, filed on January 19, 1998, and covering goods and services in classes 16, 36, 39, 41 and 42 (hotels and restaurants services).

- International trademark ACCOR CASINOS + logo N° 756453, filed on March 20, 2001, and covering goods and services in classes 16, 41 and 42 (hotels and restaurants services).

- International trademark ACCOR + logo N° 616274, filed on March 17, 1994, and covering goods and services in classes 16, 38, 39, and 42 (hotels and restaurants services);

- International trademark ACCOR + logo N° 727696, filed on December 28, 1999, and covering goods and services in classes 16, 39, and 42 (hotels and restaurants services).

Copies of these trademark registrations have been provided to the Panel.

The Complainant also operates many domain names reflecting its trademark including:

- <accor.com> registered on February 23, 1998;

- <accor-group.fr> registered on May 18, 2004;

- <group-accor.fr> registered on May 18, 2004;

- <accor-services.net> registered on November 16, 2002;

- <accorservices.net> registered on January 27, 2004.

Copies of the corresponding registrations have been provided to the Panel.

 

5. Parties’ Contentions

A. Complainant

The Complainant makes the following contentions:

A1. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights ;

(Policy, paragraph 4(a)(i), Rules, paragraphs 3(b)(viii), (b)(ix)(1))

The domain name at issue reproduces entirely the mark ACCOR with the mere addition of the single letter “a” which moreover makes no difference with the Complainant’s trademarks and may also be interpreted to be a misspelled suffix of ACCOR.

Indeed the single letter “a” is an obvious attempt to “typosquat” the disputed domain name and is insufficient to avoid confusion. Both a visual and aural comparison between the trademarks and the domain name supports the assertion that the domain name is confusingly similar to the trademark. Numerous WIPO UDRP decisions have recognized that adding a single letter is insufficient to give any distinctiveness to the domain name in dispute. See Banco Bilbao Vizcaya Argentaria, S.A. v. femi abodunrin, WIPO Case No. D2004-0404; and Kirkbi AG v. Company Require / Karlina Konggidinata and Pool.com, Inc., WIPO Case No. D2004-0359. This is precisely the case here. The addition of the letter “a” does not change the overall impression of the designation as being a domain name connected to the trademark ACCOR (Sanofi-aventis v. Nevis Domains LLC, WIPO Case No. D2006-0303. Copies of all these Cases have been provided to the Panel.

As a result, it clearly appears that the domain name at issue is strictly identical or at similar to the numerous trademarks registered by the Complainant.

Therefore, it is established that the Complainant has trademark rights in the name that is reproduced in its entirety in the domain names in dispute, and therefore the condition of Paragraph 4(a)(i) is fulfilled.

A2. The Respondent has no rights or legitimate interests in respect of the domain name;

(Policy, paragraph 4(a)(ii), Rules, paragraph 3(b)(ix)(2))

The Respondent is not affiliated in any way with the Complainant, which has not authorized the Respondent to use and register its trademarks, or to seek the registration of any domain name incorporating such marks.

Furthermore, the Respondent has no prior rights or legitimate interest in the domain name at issue. The registration of several ACCOR trademarks and of the various domain names owned by the Complainant preceded the registration of the domain name at issue for several years. More particularly, the domain name <accor.com>, owned by the Complainant, was registered in 1998.

Similarly, the Respondent is not known under the name “accor”, or “accora” or any similar term. Furthermore, it is unlikely that the term “accora”, composed of a renowned trademark plus a single letter, may have a special meaning in English.

And finally, the Respondent is not making any legitimate non-commercial or fair use of the domain name at issue, as the domain name directs to a search engine proposing sponsored links precisely to travel, hotels and vacations websites.

In fact, since the domain name at issue is so identical to the famous trademark of the Complainant, the Respondent could not reasonably pretend it was intending to develop a legitimate activity.

For all the above-cited reasons, the Respondent has no rights or legitimate interests in respect of the domain name at issue under paragraph 4(a)(ii) of the Policy.

A3. The domain name was registered and is being used in bad faith.

(Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3))

Paragraph 4(a)(iii) of the Policy requires the Complainant to prove that the Respondent registered and used the domain name at issue in bad faith. Paragraph 4(a)(iii) of the Policy requires that both bad faith registration and bad faith use be proved.

With regard to the registration in bad faith, it seems obvious that the Respondent knew or must have known of the Complainant’s hotel chain at the time the Respondent registered the domain name at issue. It seems quite difficult to sustain that the Respondent was not aware of the existence of the Complainant at the time it registered the domain name as the very precise combination of the words “accor” and the single letter “a” clearly indicates that the Respondent had the Complainant in mind when registering the domain name at issue.

Moreover, the Respondent apparently did register the domain name on purpose, to disrupt the Complainant’s business, as it used the domain name <accora.com> with sponsored links to vacations and hotels websites. Such services are in competition with the Complainant which has a reputation for its high standard. It seems likely that the domain name at issue is being used by the Respondent to take advantage of the well known trademark ACCOR and also to pass itself off as a business affiliated with the Complainant.

Thus, the Respondent registered the domain name in dispute while being perfectly aware that it was infringing the Complainant’s rights.

Meanwhile, some elements may be put forward to support the finding that the Respondent did also use the domain name in bad faith. The Respondent, by registering a domain corresponding to a famous name it could not ignore, intentionally attempted to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s mark. This conduct constitutes evidence of bad faith use, since the Respondent is trying to take profit from the Complainant’s trademark’s reputation, by increasing the traffic on its website thanks to the mere reproduction of somebody else’s trademark; this constitutes obviously a bad faith use of the domain name in dispute. See Sound Unseen, Ltd.; Apple Bottoms, LLC; and Cornell Haynes p/k/a “Nelly” v. Patrick Vanderhorst, WIPO Case No. D2005-0636, copies of which have been provided to the Panel.

Furthermore it has been previously established that bad faith may be present where a domain name “is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith”. See Sanofi-aventis v. Nevis Domains LLC, WIPO Case No. D2006-0303, a copy of which has also been provided to the Panel.

The use of the trademark ACCOR with the addition of the letter “a” suggests that Respondent is deliberately trying to free ride on the goodwill of the Complainant. This leads the Complainant to conclude that the domain name was registered and is being used in bad faith.

Consequently, in view of the above it is established the Respondent did both register and use the domain name at issue in bad faith in accordance with Paragraph 4(a)(iii) of the Policy.

B. Respondent

The Respondent, having been duly notified of the Complaint, filed a Response on June 30, 2006. In that Response, the Respondent made the following points:

QUOTE

“Carrier company FedEx brought us an envelope with documents from WIPO Arbitration and mediation Center on the 28th of June 2006.

I&M Raamatupidamise OU (registration code is 10575730 in Estonia) created on the 14 of September 1999. The founders were Mrs. IIona Kull and Mrs. Margit Raudsepp. Letters “I” and “M” were first letters of their first names in company’s name.

The company’s name was changed to Accora Consult OU on the 30th of May 2001 because Mrs. IIona Kull left the company.

Fields of activity of Accora Consult OU (former I & M Raamatupidamise OU) has always been:

- bookkeeping services;

- auditing services;

- advisory services;

- foundation of companies in Estonia;

- education activity and organizing seminars.

Accora Consult OU has a local domain accora.ee. it was created by our webmaster (OU Infinit Solutions, registration code is 10938598 in Estonia) on the 15th of May 2001.

The owners and personnel of Accora Consult OU and our webmaster were not aware of the domain accora.com till the morning of 28th of June 2006. We did not know that:

- domain is existing;

- the domain accora.com proceed automatically to accora.ee;

- according to information written on web site www.indom.fr our company is behind all of it.

There is information about MetaFusion.com and Mr. Shuhaib Shariff in your documents. We have never been in contact with MetaFusion.com nor Mr. Shuhaib Shariff.

We have never reached any phone calls, e-mails nor documents by post from following companies before: WIPO Arbitration and Mediation Center, Cabinet Dreyfus & Associes and MetaFusion.com.

The information published on the website www.indom.fr about is false.

All documents received on the 28th of June 2006 are incomprehensive because:

Accora Consult OU (formerly I & M Raamatupidamise OU) have never been interested about the domain name accora.com.

Accora Consult OU has never paid anything for the domain name accora.com.

Accora Consult OU has never paid anything to renew the domain accora.com.

This domain does not belong to Accora Consult OU (former I & M Raamatupidamise OU).

[…..]

Our point of view is that someone-somewhere uses information about us. The situation is very bad for us and puts us in very bad situation because we do not know anything about present case and how to protect us right now.

With due respect

Margit Raudsepp

Executive Accora Consult OU

Register code (in Estonia) 10575730.”

UNQUOTE

 

6. Discussion and Findings

To qualify for transfer of the disputed domain name, the Complainant must prove each of the following elements of paragraph 4(a) of the Policy, namely:

(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

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

(iii) The disputed domain name has been registered and is being used in bad faith.

In accordance with paragraph 15(a) of the Rules, the Panel shall 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.

In accordance with paragraph 10(d) of the Rules, the Panel shall determine the admissibility, relevance, materiality and weight of the evidence.

A. Identical or Confusingly Similar

In accordance with prior UDRP decisions, where a domain name incorporates a complainant’s registered mark, this is sufficient to establish that the domain name is identical or confusingly similar for the purposes of the Policy. See, for example, Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.

The disputed domain name incorporates the trademark ACCOR, which is owned and commercially used and promoted by the Complainant exclusively in and for the purposes of its business and the sale of its services for several years. Furthermore, the Panel accepts and recognizes that the Complainant’s trademark ACCOR is well-established and well-known to and has a good reputation. In addition, the name ACCOR is also protected as a trade name.

The Panel agrees with the Complainant’s contention that the addition of the letter “a” to the name ACCOR is irrelevant, for trademark purposes, in that it does not serve to distinguish the domain name at issue from the trademark of the Complainant. The main and recognizable part of the domain name at issue is the name ACCOR. This view is entirely consistent with many previous UDRP decisions, including the case of Kirkbi AG v. Company Require / Karlina Konggidinata and Pool.com, Inc., WIPO Case No D2004-0359 cited by the Complainant. In that case the panel held that “[t]he disputed domain name <legos.com> is confusingly similar to the trademark LEGO, the mere inclusion of an additional letter, in the present case the letter “s”, is not a distinctive feature and the Complainant’s trademark is entirely contained in the disputed domain name…..”

The Respondent’s disputed domain name essentially incorporates the Complainant’s well-known trademark ACCOR.

In view of all this, the Panel finds that the disputed domain name registered by the Respondent is identical or confusingly similar to the trademark ACCOR, in which the Complainant has demonstrated, to the satisfaction of the Panel, that it has well-established, well-known and commercially valuable rights through registration and also commercial use and promotion around the world.

B. Rights or Legitimate Interests

In order to determine whether the Respondent has any rights or legitimate interests in respect of the disputed domain name (paragraphs 3(b)(ix)(2) of the Rules and 4(c) of the Policy), attention must be paid to any of the following circumstances in particular but without limitation:

- Whether before any notice to the Respondent of the dispute, there is any evidence of the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;

- whether the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights;

- whether the Respondent is making a legitimate non commercial or fair use of the domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark or service mark at issue.

There is no evidence to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the domain name at issue. Indeed, in view of the notoriety of the Complainant’s trademark ACCOR, as well as the several domain names containing the trademark ACCOR (cited above), which have been registered and used worldwide by the Complainant, the Respondent must or should have known that, when registering the domain name at issue, the Respondent could not reasonably have claimed any such rights or interests. Also, the Respondent has not been authorized or licensed by the Complainant to use the domain name at issue.

In particular, the Panel finds no evidence that the Respondent has used, or undertaken any demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services. On the contrary, the Complainant has established that the Respondent has used the domain name for a web site that directs Internet users when clicking on the “contact” bar not to the Complainant and its services, but to its own local web site “www. accora.ee”.

Furthermore, the adoption by the Respondent of a domain name confusingly similar to the Complainant’s trademark ACCOR will in all likelihood lead to the diversion of the Complainant’s consumers, wishing to access the Complainant’s principal websites to the Respondent’s web site (see further on this point below) and the links there to competitors of the Complainant, with the consequential tarnishing of the Complainant’s trademark. In other words, the Respondent is trading, for commercial gain, on the good name, notoriety and well-earned reputation of the Complainant’s business and its well-known trademark and thereby unfairly attracting to its own business and activities the substantial goodwill that the Complainant has established over several years in its name and mark around the world, sufficient evidence of which has been provided to the Panel, without any right or legal justification for doing so.

Indeed, as was pointed out in Red Bull GmbH v. Bayer Shipping & Trading Ltd., WIPO Case No. D2003-0271, the linking to competitive third-party websites “shows that Respondent is well aware of Complainant as well as of its products and activities, and, instead of making a bona fide use of the domain name, rather intends to have a free ride on the fame and goodwill of Complainant and its trademarks”.

Therefore, for all the above reasons, the Panel concludes that the Respondent has neither rights to nor legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Regarding the bad faith requirement, paragraph 4(b) of the Policy lists four examples of circumstances, which if found by the Panel to be present constitute evidence of bad faith. However, this list is not exhaustive, but merely illustrative. See Nova Banka v. Iris, WIPO Case No. D2003-0366.

Paragraph 4(b)(iv) of the Policy is particularly relevant to the present case and provides that there is evidence of bad faith in the following circumstances:

“(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent’s website or location or of a product or service on its website or location.”

Based on the evidence provided in the Case File, the Panel agrees with the Complainant’s contention that the Respondent, by registering the disputed domain name, is trading on the Complainant’s valuable goodwill established in its well-known trademark ACCOR over several years. Indeed, as previously mentioned, in the absence of any satisfactory explanation to the contrary (see below), the Respondent’s registration of the disputed domain name would not appear to be accidental, but deliberate and calculated to exploit the Complainant’s goodwill and thereby increase traffic to its web site. This conclusion is reinforced by the link on the website of the Respondent (referred to above), which refers Internet users to the Respondent’s local web site “www.accora.ee”. This conduct constitutes bad faith. See Sound Unseen, Ltd.; Apple Bottoms, LLC; and Cornell Haynes p/k/a “Nelly” v. Patrick Vanderhorst, WIPO Case No. D2005-0636, in which the panel held that “…the respondent’s opportunistic exploitation of inevitable Internet user confusion…..by way of increased Internet traffic he would not have otherwise attained….…..constitute… bad faith.”

Again, by registering and using the disputed domain name incorporating the Complainant’s trademark, ACCOR, the Respondent is misleading Internet users and consumers into thinking that it is, in some way or another, connected to, sponsored by or affiliated with the Complainant and its business; or that the Respondent’s activities are approved or endorsed by the Complainant. None of which, according to the case file is, in fact, the case. Such misleading conduct, in the view of the Panel, is another sign of bad faith on the part of the Respondent.

Finally, although the Respondent (as mentioned above) claims to have never had any interest in the domain name at issue, nevertheless it has not offered to transfer the domain name to the Complainant other than on the basis of amount of money which would appear to substantially exceed costs reasonably associated with registration. Also, the Panel does not find the Respondent’s explanation for the change of name of its business to “Accora Consult OU” very convincing – why Accora and not some other name associated with the surviving partner, Mrs. Margit Raudsepp. All of which tends to suggest bad faith on the part of the Respondent.

Therefore, for all the above reasons, the Panel concludes that the Respondent, despite its claims of being an innocent and unwilling party to the present case but nevertheless being the owner of record of the domain name at issue, has registered and is using the domain name in bad faith.

 

7. Decision

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, <accora.com>, be transferred to the Complainant.


Ian Blackshaw
Sole Panelist

Date: July 13, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0650.html

 

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