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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Accor v. This Domain May be for Sale or Lease

Case No. D2008-0420

 

1. The Parties

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

The Respondent is This Domain May be for Sale or Lease, Queensland, Australia.

 

2. The Domain Name(s) and Registrar(s)

The disputed domain names are <a-c-c-o-r.com>, <a-l-l-s-e-a-s-o-n-s.com>, <f-o-r-m-u-l-e-1.com>, <formule-1-hotels.com>, <formule1hotels.info>, <ibis-hotels.info>, <m-e-r-c-u-r-e.com>, <n-o-v-o-t-e-l.com>, <novotelhotels.info>, <p-u-l-l-m-a-n.com>, <pullmanhotels.info>, <pullmanhotels.net>, <pullmanhotels.org>, <s-o-f-i-t-e-l.com> are all registered with GoDaddy.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 18, 2008, initially against seven domain names. On March 19, 2008, the Center transmitted by email to GoDaddy.com, Inc. and Indomco dba Indom a request for registrar verification in connection with the domain names at issue. On March 19, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of <formule-1-hotels.com>, <n-o-v-o-t-e-l.com>, <novotelhotels.info>, <pullmanhotels.info>, <pullmanhotels.net> and <pullmanhotels.org> and providing the contact details. On March 28, 2008, Indomco dba Indom informed the Center that the domain name <formule1hotels.com> was registered in the name of Complainant. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 17, 2008, withdrawing the domain name which was already under its control and adding an additional eight domain names: <a-c-c-o-r.com>, <a-l-l-s-e-a-s-o-n-s.com>, <f-o-r-m-u-l-e-1.com>, <formule1hotels.info>, <ibis-hotels.info>, <m-e-r-c-u-r-e.com>, <p-u-l-l-m-a-n.com>, <s-o-f-i-t-e-l.com>; registered with the same Respondent. On April 16, 2008, the Center transmitted by email to GoDaddy.com, Inc. a second request for registrar verification in connection with the added domain names. On April 16, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of the added domain names. 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 Respondent of the Complaint, and the proceedings commenced on April 18, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 8, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 9, 2008.

The Center appointed Paul E. Mason as the sole panelist in this matter on May 15, 2008. 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

Complainant Accor asserts ownership of trademarks in the following groups, all dealing with the hotel/hospitality industry:

A. ACCOR: numerous registrations in different international classes (ICs) in Australia (Respondent’s location) in 2005, and in Switzerland (the country where the owner of Respondent’s administrative contact email address – International Data Storage – has its registered office) as from 1989 – 2007.

B. PULLMAN: several registrations in different ICs in Switzerland in 1986 and 1993.

C. NOVOTEL: numerous registrations in different ICs in Australia (1994) and Switzerland as from 1994 – 2007.

D. FORMULE 1: numerous registrations in different ICs in Australia (1998) and Switzerland as from 1998 – 2007.

E. MERCURE: numerous registrations in different ICs in Australia (2004 - 2007) and Switzerland as from 1998 – 2007.

F. SOFITEL: numerous registrations in different ICs in Australia (2005) and Switzerland as from 1974 – 2007.

G. ALL SEASONS: numerous registrations in different ICs in Australia and Switzerland as from 2007.

H. IBIS: numerous registrations in different ICs in Australia (2004) and Switzerland as from 1989 – 2006.

Complainant has also displayed in its Complaint lists of related domain names which it has registered and correspond to the sets of trademarks categorized above.

The case file for this case contains documents from the WHOIS database and the Registrar which indicate that all the domain names at issue in this case were registered by Respondent on the same date, January 28, 2008 – well after registration of all Complainant’s relevant trademarks listed above.

 

5. Parties’ Contentions

A. Complainant

Complainant has described its extensive activities in the area of international hotel, hospitality and travel. Its brand names are ones which travelers recognize and access via the internet to secure a large percentage of Complainant’s hotel bookings and reservations. Therefore the role of the domain names becomes quite important to the business functions of Complainant.

Complainant contends that the contested domain names are confusingly similar to its registered trademarks. It argues that the domain names reproduce the trademark names in their entirety, and that the mere addition of punctuation marks, generic terms, and/or different gTLDs do not distinguish the domain names from Complainant’s trademarks in any legally meaningful way.

Complainant asserts that Respondent has no rights or legitimate interests in the domain names, as it has not been in the travel/hospitality business and did not acquire from Complainant any licenses or authorizations to use these domain names.

Complainant indicates that Respondent registered the domain names in bad faith because all of the trademark categories described above in this decision represent internationally famous marks, so that Respondent actually knew or must have known about these marks which are highly similar to the domain names registered by Respondent.

Finally, Complainant points out that Respondent has used the domain names in bad faith by:

- creating related websites which direct Internet visitors to establish “commercial links” in the same hotel industry as Complainant, therefore taking unfair advantage of the similarities between the domain names and Complainant’s trademarks to direct Internet traffic to competing businesses; and

- offering the domain names for sale to Complainant at prices significantly higher than the costs of registering these domain names.

B. Respondent

Respondent did not reply to Complainant’s contentions. However, on May 16, 2008, after the Complaint was filed, Respondent did send an email communication to the Complainant’s attorney, copying the Center, offering to reduce its asking price for sale of the domain names if the Complainant were to drop this case. This was a follow-on to the email of March 6, 2008, in which Respondent initially offered the domain names for sale to the Complainant. A copy of Respondent’s email dated March 6, is included in Annex 14 to the Complaint.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

This Panel finds that the mere addition of punctuation marks (a practice known as “typosquatting”) and different gLTD identifiers does not distinguish the domain names from Complainant’s trademarks in any legally meaningful way. There are a host of UDRP cases supporting this conclusion.

The Panel agrees with Complainant that adding the generic name of the related business activity (“hotels” in this case) has the opposite effect of what Respondent intended – instead of distinguishing the domain names, it creates further confusion between them and Complainant’s trademarks and thus indicates both registration and use of the domain names in bad faith. See The Ritz Hotel, Limited v. Damir Kruzicevic, WIPO Case No. D2005-1137, (addition of corresponding trademark to domain name does not give distinctiveness to the domain name) and ACCOR v. Seocho, WIPO Case No. D2002-0517, (addition of the related business activity to the domain name adds to likelihood of confusion).

For these reasons, the Panel finds the domain names to be confusingly similar to Complainant’s trademarks.

B. Rights or Legitimate Interests

Complainant asserts that it has not granted any licenses or authorizations for Respondent to use its trademarks.

If the circumstances are sufficient to constitute a prima facie showing by Complainant of absence of rights or legitimate interests in the domain names on the part of Respondent, the evidentiary burden shifts to Respondent to show, by plausible, concrete evidence, that Respondent does have a right or legitimate interest in the Domain Names. Here Complainant has established a prima facie case that Respondent lacks rights or legitimate interests. And Respondent, by not answering the Complaint, has failed to meet the shifted burden.

This Panel has not seen any evidence to the effect that Respondent is engaged in the legitimate business of travel related services. To the contrary, Respondent’s email to Complainant’s attorney of May 16, 2008 identifies Respondent as a “travel wholesaler” and indicates that Respondent is acting as a sales intermediary for the domain names on behalf of its clients.

For these reasons, the Panel finds that Respondent has no rights or legitimate interests in the domain names.

C. Registered and Used in Bad Faith

(1) Registration. The Complainant’s trademarks are certainly widely known worldwide. See for example ACCOR v. Eliah Zusstone, WIPO Case No. D2006-0362, (ACCOR trademark); Accor v. VVNW, Inc, WIPO Case No. D2005-0026 (NOVOTEL trademark); and ACCOR S.A. v. Gary Weber, WIPO Case No. D2007-1053, (SOFITEL trademark).

They were registered in both Australia and Switzerland, countries relevant to Respondent’s knowledge of the existence of these marks, as of the dates indicated in Section 4 of this decision, supra.

(2) Use. A long line of UDRP cases has held that the offer to sell domain names at prices far in excess of their registration costs is tantamount to bad faith use of the domain names.

In addition to that, direction of Internet visitors to sites proposing competing business activity is at the core of the UDRP definition of bad faith use of a domain name.

The case file contains printouts of pages from the websites associated with the domain names at issue here. These so-called “parked” domain name sites contained as of the date of these printouts – May 9, 2008 – listings and links to hotels competing with those of the Complainant. This amounts to “steering” unsuspecting Internet visitors to competing services taking advantage of the confusion created by the similarity of the domain names to Complainant’s trademarks – the very essence of bad faith use under the UDRP.

For these reasons the Panel finds the domain names have been registered and used in bad faith by Respondent.

 

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 following domain names <a-c-c-o-r.com>, <a-l-l-s-e-a-s-o-n-s.com>, <f-o-r-m-u-l-e-1.com>, <formule-1-hotels.com>, <formule1hotels.info>, <ibis-hotels.info>, <m-e-r-c-u-r-e.com>, <n-o-v-o-t-e-l.com>, <novotelhotels.info>, <p-u-l-l-m-a-n.com>, <pullmanhotels.info>, <pullmanhotels.net>, <pullmanhotels.org>, <s-o-f-i-t-e-l.com> be transferred to the Complainant.


Paul E. Mason
Sole Panelist

Dated: May 28, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0420.html

 

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