Accor v. Bruce Mole
Claim Number: FA1203001435595
Complainant is Accor (“Complainant”), represented by Nathalie Dreyfus of Dreyfus & associés, France, USA. Respondent is Bruce Mole (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <accorhotels.us>, registered with Dynadot, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 21, 2012; the National Arbitration Forum received a hard copy of the Complaint on March 26, 2012.
On March 21, 2012, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <accorhotels.us> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 28, 2012, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 17, 2012 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 23, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <accorhotels.us> domain name is identical to Complainant’s ACCOR mark.
2. Respondent does not have any rights or legitimate interests in the <accorhotels.us> domain name.
3. Respondent registered and used the <accorhotels.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant operates more than 4,200 hotels in 92 countries under its ACCOR mark. Complainant owns a trademark registration with the World Intellectual Property Office (“WIPO”) for its ACCOR mark (Reg. No. 953,507 registered August 16, 2007), and with the United States Patent and Trademark Office (“USPTO”) for its ACCOR mark (Ser. No. 77,238,500 filed on July 25, 2007).
Respondent registered the disputed domain name on May 13, 2010. The disputed domain name resolves to a website that hosts hyperlinks to third parties in the hotel and travel businesses.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Preliminary Issue: Respondent’s Identity
Complainant argues that the original registrant of the disputed domain name, Bruce Moller, transferred the domain name to Joseph Schulz after Complainant refused to buy the disputed domain name. Mr. Schulz then transferred the <accorhotels.us> domain name to Hao Domains Services / Zhao Ke after Complainant sent Mr. Schulz a cease-and-desist letter. Complainant asserts that the domain name was finally transferred to Respondent, Bruce Mole. Complainant contends that the previous registrants of the disputed domain name and Respondent are the same person or entity. Some of the previous owners of the <accorhotels.us> domain name have been respondents in previous UDRP proceedings in which the panels transferred the disputed domain names to the respective complainants. See Roche Diagnostics GmbH v. Joseph Schulz, D2010-0761 (WIPO July 9, 2010); see also Dr. Ing. H.c. F. Porsche AG v. Zhao Ke, D2011-1913 (WIPO Dec. 28, 2011); see also Missoni S.p.A. v. Zhao Ke, D2011-1910 (WIPO Feb. 7, 2012). However, Complainant does not provide any further evidence linking the different registrants of the disputed domain name. The Panel therefore finds that Complainant has failed to present sufficient evidence that Respondent and the previous registrants of the <accorhotels.us> domain name are the same person or entity. The Panel will conduct its analysis with only Respondent, the current registrant, in mind.
Complainant presents the Panel with evidence of its trademark registration with WIPO for its ACCOR mark. The Panel finds that this evidence sufficiently demonstrates Complainant’s rights in the ACCOR mark pursuant to Policy ¶ 4(a)(i), regardless of where Respondent resides or operates. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s national trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to UDRP ¶ 4(a)(i)); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of [UDRP] ¶ 4(a)(i).”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <accorhotels.us> domain name contains Complainant’s entire ACCOR mark, the descriptive term “hotels,” and the country-code top-level domain (“ccTLD”) “.us.” These changes fail to adequately distinguish the disputed domain name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under UDRP ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark); see also Check Into Cash, Inc. v. Questar, FA 1024235 (Nat. Arb. Forum Aug. 13, 2007) (holding that the addition of the ccTLD “.us” did not distinguish the disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel finds that Respondent’s <accorhotels.us> domain name is confusingly similar to Complainant’s ACCOR mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Nce Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
There is no evidence in the record that Respondent owns any service marks or trademarks reflecting the disputed domain name. Therefore the Panel finds that Respondent does not have rights and legitimate interests in the <accorhotels.us> domain name pursuant to Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002 (finding that there was no evidence that Respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.com> domain name); see also Pepsico, Inc. v. Becky, FA 117014 (Nat. Arb. Forum Sep. 3, 2002) (holding that because Respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Complainant argues that Respondent is not commonly known by the <accorhotels.us> domain name. Complainant claims that Respondent is not affiliated with Complainant and is not authorized to use Complainant’s ACCOR mark. The WHOIS information lists “Bruce Mole” as the registrant of the disputed domain name. Thus, the Panel concludes that Respondent is not commonly known by the <accorhotels.us> domain name under Policy ¶ 4(c)(iii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant claims that Respondent’s <accorhotels.us> domain name resolves to a website that features hyperlinks resolving to the websites of third parties that offer competing hotel and travel services. Complainant argues that Respondent commercially benefits from these hyperlinks. The Panel agreesand finds that Respondent’s use of the <accorhotels.us> domain name is neither a Policy ¶ 4(c)(ii) bona fide offering of goods or services nor a Policy ¶ 4(c)(iv) legitimate noncommercial or fair use of the disputed domain name. See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under UDRP ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to UDRP ¶ 4(c)(iii)); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)) .
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <accorhotels.us> domain name for the purpose of hosting hyperlinks that resolve to competing hotel and travel websites. This use disrupts Complainant’s own hotel business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under UDRP ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to UDRP ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Respondent creates a strong likelihood of confusion among Internet users as to the source, sponsorship, affiliation, or endorsement of the website resolving from the <accorhotels.us> domain name. Respondent hosts competing hyperlinks on the resolving website, from which Respondent no doubt obtains a commercial benefit. Therefore, the Panel finds that Respondent’s use of the <accorhotels.us> domain name is in bad faith pursuant to Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under UDRP ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum Apr. 30, 2002) (“Complainants are in the music and entertainment business. The links associated with <billboard.tv> and <boogie.tv> appear to be in competition for the same Internet users, which Complainants are trying to attract with the <billboard.com> web site. There is clearly a likelihood of confusion between <billboard.tv> and BILLBOARD as to the source, sponsorship, affiliation, or endorsement of the web site or of a product or service on the web site.”).
Complainant contends that, in light of the fame and notoriety of Complainant's ACCOR mark, it is inconceivable that Respondent could have registered the <accorhotels.us> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name, additional evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <accorhotels.us> domain name be TRNASFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 30, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page