The Complainant is ACCOR société anonyme,
Evry, France, represented by Cabinet Dreyfus & Associés, France.
The Respondent is Mr. Young Gyoon Nah, of Yongheung,
Pohang, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <accorservice.com>
(the “Domain Name”) is registered with Blue Razor Domains (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration
and Mediation Center (the “Center”) on August 26, 2004. After resolving
some confusion as to the identity of the registrar of the Domain Name, the Center
transmitted its standard request for registrar verification to the Registrar
by email on September 8, 2004. The Registrar replied on the same date confirming
that it had received a copy of the Complaint, that it was the Registrar of the
Domain Name, that the Respondent was the registrant, that the Uniform Domain
Name Dispute Resolution Policy (the “Policy”) applied to the registration,
that the Domain Name would remain locked during this proceeding, and that the
registration agreement was in English and contained a submission by the Respondent
to the jurisdiction at the location of the principal office of the Registrar.
The Registrar also provided the contact details for the Respondent and the technical,
administrative and billing contacts on its Whois database.
On September 10, 2004, the Center invited the Complainant
to amend the Complaint to correct the identification of the Registrar. The Complainant
replied on September 14, 2004, enclosing and faxing a corrected page of the
Complaint. The Center also verified on September 10, 2004, that the Complaint
satisfied the formal requirements of 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”). This verification must be taken to have been subject to the requirement
to correct the identification of the Registrar.
In accordance with the Rules, paragraphs 2(a) and
4(a), the Center formally notified the Respondent of the Complaint by courier,
fax and email to the contact details in the Registrar’s Whois record and
also by email to [email protected], and the proceedings commenced
on September 10, 2004. The fax and email transmission to [email protected]
appear to have been unsuccessful, but the other communications appear to have
been transmitted successfully. In accordance with the Rules, paragraph 5(a),
the due date for Response was September 30, 2004. The Respondent did not submit
any response. Accordingly, the Center notified the Respondent’s default
on October 1, 2004.
The Center appointed Jonathan Turner as the sole panelist in this matter on
October 19, 2004. 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.
Having reviewed the file, the Panel is satisfied that the Complaint as amended
complied with applicable formal requirements or that any deficiencies are immaterial
and can be waived. The Panel is also satisfied that the Complaint was duly notified
to the Respondent and has been submitted to a properly constituted Panel in
accordance with the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant operates over 4000 hotels and restaurants around the world,
including several hotels in Korea. The Complainant also provides services such
as meals, uniform cleaning, childcare and home help through a subsidiary or
division called “Accor Services”. The Complainant has registered
“ACCOR” as a word mark and various device marks containing the word
“accor” in a number of countries in respect of various goods and
services. It has also registered “ACCOR SERVICES” as a word mark
in France and Spain in respect of various services.
The Respondent, a resident of Korea, registered the Domain Name on January
4, 2004, and subsequently caused it to resolve to a web page containing links
presented in English to websites promoting or providing a variety of services
including tourist and customer services.
The Complainant’s legal adviser sent a letter
of complaint to the Respondent on May 14, 2004. The Respondent replied by email
in Korean on May 17, 2004. The Complainant’s legal adviser wrote again
to the Respondent on June 14, 2004, requesting a translation of the Respondent’s
email.
The Respondent replied again on June 15, 2004, stating that he was very surprised
and displeased to receive the Complainant’s lawyer’s letter, that
he had not registered the Domain Name on purpose, that “accor” is
a very general and popular word in the world, and that he did not know the Complainant’s
brand name “accor” at all; but that since the Complainant needed
the Domain Name, he was willing to transfer it for US $1000.
The Complainant’s legal adviser reverted by
email of June 15, 2004, offering the Respondent US $100 for transferring the
Domain Name and pointing out that this was more than the costs of registration.
There was no immediate response from the Respondent and the Complainant’s
legal adviser repeated the offer of US $100 by email of July 6, 2004. The Respondent
replied by email the same day stating that US $100 was an absurd price and that
if the Complainant wanted to get the Domain Name it should make a serious offer.
The Complainant’s lawyer responded on July 7, 2004, stating that the Complainant’s
offer was fair since US $100 greatly exceeded the cost of registration. The
Respondent replied by email the same day requesting the Complainant’s
lawyer not to email him, and threatening that if she did it again, he would
report her email address as spam.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the Domain Name is
identical or confusingly similar to the Complainant’s marks “ACCOR”
and “ACCOR SERVICES”; that the Respondent has no rights or legitimate
interests in respect of the Domain Name; and that the Domain Name was registered
and is being used in bad faith.
The Complainant points out that the Respondent
must have known about the Complainant at the time of the registration since
he chose to register a domain name which was a mis-spelling of the name “Accor
Services” used by the Complainant. The Complainant further notes that
the Respondent would have been aware of the Complainant’s business since
it has several hotels in Korea. The Complainant also alleges that the Respondent
has used the Domain Name to attract Internet users seeking to contact or obtain
information about the Complainant to his website, thereby disrupting the Complainant’s
business.
The Complainant seeks transfer of the Domain Name.
B. Respondent
As noted above, the Respondent did not reply to
the Complainant’s contentions.
6. Discussions and Findings
In accordance with the Policy, paragraph 4(a), to succeed in this proceeding,
the Complainant must prove (a) that the Domain Name is identical or confusingly
similar to a trademark in which it has rights, (b) that the Respondent has no
rights or legitimate interests in respect of the Domain Name, and (c) that the
Domain Name was registered and is being used in bad faith. These requirements
will be considered in turn below.
A. Identical or confusingly similar.
The Domain Name is obviously confusingly similar,
if not identical, to the Complainant’s registered trademark “ACCOR
SERVICES”. It is also confusingly similar to the Complainant’s registered
trademarks in respect of the word “accor” and logos comprising the
word “accor”; the addition of the descriptive word “service”
would be insufficient to differentiate even if the Complainant did not have
separate rights in the mark “ACCOR SERVICES”.
Although the Complainant’s marks have not been registered in the Republic
of Korea, where the Respondent lives, the Panel considers that the Complainant
is entitled to rely on its registered rights in other countries, particularly
as the Respondent has used the Domain Name for a web page containing links in
English addressed to an international audience. In these circumstances it is
unnecessary to consider whether the Complainant might also have unregistered
trademark rights in the Republic of Korea by virtue of its operations in that
country, cf. Cho Yong Pil v. ImageLand, Inc., WIPO
Case No. D2000-0229 <choyongpil.com>.
The Panel therefore considers that the first requirement of the Policy is met.
B. Rights or Legitimate Interests
The Panel is satisfied that the Respondent does not
have any rights or legitimate interests in respect of the Domain Name. The Panel
does not regard the Respondent’s use of the Domain Name to resolve to
a web page containing links to various other websites as being in connection
with a bona fide business. On the contrary, it appears to the Panel
that this use was intended to divert internet users seeking to contact or obtain
information about the Complainant, in the hope of provoking an offer by the
Complainant to purchase the Domain Name, and probably in the expectation of
obtaining “click-through” commissions from internet users using
the links in the meanwhile.
C. Registered and Used in Bad Faith
The Panel further considers that the Domain Name was registered and is being
used in bad faith. In the absence of any satisfactory explanation to the contrary,
it can be inferred from the Respondent’s offer to sell the Domain Name
at an elevated price that the Respondent registered it for this purpose. The
Panel rejects the Respondent’s explanation in correspondence that he registered
the Domain Name because “accor” is a “very general and popular
word in the world”. This is not correct and, even if it were, it would
not account for the registration of <accorservice.com>. In all the circumstances,
the Panel concludes that the Respondent registered the Domain Name speculatively
with a view to sale to the Complainant. This is a prime example of bad faith
abuse of the domain name system as recognized in paragraph 4(b)(i) of the Policy.
The Panel is also satisfied that the Respondent has
endeavoured to attract internet users to his web page by creating a likelihood
of confusion with the Complainant’s marks and probably thereby to obtain
commercial gain from “click-through” commissions. Some Internet
users may well suppose that the Complainant has endorsed the websites and services
promoted on the Respondent’s web page. However, even where internet users
quickly realize that the position is otherwise, the Respondent may still gain
commercially from having attracted them to these sites by his use of a Domain
Name confusingly similar to the Complainant’s mark, cf. Bass Hotels
& Resorts, Inc. vs. Mike Rodgerall, WIPO
Case No. D2000-0568 <basshotel.com> and other cases cited there. This
is another prime example of bad faith within the meaning of the Policy as recognized
in its paragraph 4(b)(iv).
Finally, the Panel considers that the Respondent has
set out to disrupt the Complainant’s business by his use of the Domain
Name as described above with a view to provoking the Complainant into purchasing
the Domain Name at an elevated price. Even if this was secondary to the Respondent’s
primary purpose of selling the Domain Name, and so not precisely within paragraph
4(b)(iii) of the Policy, the Panel regards this as a further aspect of bad faith.
The Panel concludes that the third requirement of
the Policy is satisfied.
Since the Domain Name is unlikely to be of legitimate
interest to any party other than the Complainant, it should be transferred to
the Complainant in accordance with the Complainant’s request.
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, <accorservice.com>, be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Dated: October 24, 2004
Stay updated! Get new cases and decisions by daily email.
