WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor SA v. Sergey Ivanov
Case No. D2019-2641
1. The Parties
The Complainant is Accor SA, France, represented by Dreyfus & associés, France.
The Respondent is Sergey Ivanov, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <pullmancayococo.com> is registered with Registrar of Domain Names REG.RU LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 29, 2019. On October 29, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 30, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 31, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same date, the Center sent a language of the proceedings email to the Parties in English and in Russian, inviting the Complainant to submit comments by November 3, 2019, and the Respondent to submit comments on the Complainant’s comments by November 5, 2019. On November 4, 2019, the Complainant filed a request for English to be the language of the proceedings, and filed an amended Complaint on November 5, 2019. The Respondent did not submit any comments.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint in English and Russian, and the proceedings commenced on November 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 2, 2019. The Respondent did not submit any response. On December 6, 2019, the Center invited the Respondent to indicate whether it intends to participate in the proceedings by December 11, 2019. The Respondent did not reply to this invitation.
The Center appointed Assen Alexiev as the sole panelist in this matter on December 18, 2019. 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. The decision due date was extended to January 15, 2020.
4. Factual Background
The Complainant is a French multinational hotel group. It is a world leader in economic and mid-scale hotels, and a major player in upscale and luxury hospitality services. The Complainant operates the hotel chains Sofitel, Pullman, Novotel, Mercure and Ibis, and has more than 4,800 hotels in 110 countries.
Pullman is the high-end international brand of the Complainant’s group. Pullman hotels have central locations in the major cities of the world, and are present in 40 countries, with 131 hotels consisting of more than 38,000 rooms. Among these hotels is the Pullman Cayo Coco Hotel, which is an all-inclusive 5-star resort facing the Caribbean Sea and located at the Cuban island of Cayo Coco.
The Complainant is the owner of the following trademark registrations for the sign PULLMAN (the “PULLMAN trademark”):
- the International trademark PULLMAN with registration No.502625, registered on May 5, 1986 and covering goods and services in International Classes 29, 30, 33 and 42;
- the International trademark PULLMAN with registration No.1197984, registered on November 28, 2013 and covering services in International Class 43; and
- the International trademark PULLMAN with registration No.1429995, registered on July 27, 2018 and covering services in International Class 36.
The Complainant operates the domain names <pullmanhotels.com> registered on March 10, 1999, and <pullmanhotels.ru> registered on July 16, 2008.
The disputed domain name was registered on September 6, 2018. It redirects visitors to the website at “www.tripexplorer.website”, which offers hotel accommodation in various hotels in Cuba, Argentina, Chile, Uruguay, Costa Rica, the Dominican Republic and Spain.
5. Parties’ Contentions
A. Complainant
The Complainant submits that the disputed domain name is confusingly similar to the PULLMAN trademark, which it reproduces entirely in combination with the geographical term “Cayo Coco”, which is the name of an island in Cuba where the Complainant’s Pullman Cayo Coco Hotel is located.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, as the Respondent is not commonly known by it, is not affiliated with the Complainant and has not been authorized by the Complainant to use the PULLMAN trademark or to register any domain name incorporating the PULLMAN trademark. The Complainant points out that the PULLMAN trademark precedes the registration of the disputed domain name for years, and the disputed domain name redirects to the website at “www.tripexplorer.website”, which offers online hotel booking services, so Internet users are likely to wrongly believe that this website is endorsed by the Complainant. According to the Complainant, this shows that the Respondent is making a non-legitimate use of the disputed domain name with the intent for commercial gain to misleadingly divert customers from the Complainant’s official website and to sell them fake services.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Respondent must have been aware of the Complainant when it registered the disputed domain name, since the Complainant is well known throughout the world, and the composition of the disputed domain name entirely reproduces the Complainant’s PULLMAN trademark and makes reference to the Complainant’s Pullman Cayo Coco Hotel. According to the Complainant, the Respondent registered the disputed domain name based on the notoriety and attractiveness of the Complainant’s PULLMAN trademark in order to divert Internet traffic to its website.
The Complainant further submits that the Respondent is using the disputed domain name to intentionally attract Internet users to its website by creating a likelihood of confusion with the Complainant’s PULLMAN mark as to the source, sponsorship, affiliation or endorsement of the hotel booking services offered on the Respondent’s website in order to obtain commercial gain, which results in customer diversion and unfair competition.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Procedural issue – Language of the proceedings
In respect of the language of the proceedings, the Panel notes the following. According to the information provided by the Registrar, the language of the registration agreement for the disputed domain name is Russian. Under paragraph 11 of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The Complainant submitted its Complaint in the English language, and requests the proceeding to be held in English. The Complainant argues that the translation of the Complaint into Russian would unreasonably burden the Complainant and delay the proceedings. The Center has sent all its messages to the Respondent in both English and Russian, and has invited the Respondent to express its views on the language of the proceeding. The Respondent has not responded to this invitation and has thus not objected to the Complainant’s request that the proceedings be held in English. In addition, the website to which the disputed domain name redirects is entirely in English. These considerations satisfy the Panel that the Respondent can communicate in English.
Taking all the above circumstances into account, the Panel accepts that the Respondent would not be disadvantaged if the language of the proceeding is English, and is satisfied that using the English language in this proceeding would be fair and efficient.
Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that the language of this administrative proceeding will be English.
6.2. Substantive issues
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name …”
The Respondent has however not submitted a Response and has thus not disputed the Complainant’s statements and evidence in this proceeding.
A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the PULLMAN trademark.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). The Panel sees no reason not to follow the same approach here, so it will disregard the “.com” gTLD section of the disputed domain name.
The relevant part of the disputed domain name is therefore the sequence “pullmancayococo”. It consists of the elements “pullman” and “cayo coco”, where the “pullman” element is identical to the PULLMAN trademark, and “cayo coco” coincides with the name of the island of Cayo Coco in Cuba, where the Complainant’s Pullman Cayo Coco hotel is located. The Complainant’s PULLMAN trademark is clearly recognizable in the disputed domain name. The addition of the geographic term “Cayo Coco” does not prevent a finding of confusing similarity. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the PULLMAN trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview 3.0.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent is not commonly known by the disputed domain name and there is no relationship between the Parties. The Complainant also points out that the Respondent is not using the disputed domain name for a bona fide purpose, but uses the disputed domain name to mislead Internet users and redirect them to a website that offers hotel booking services for third-party hotels. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has not alleged that it has rights or legitimate interests in the disputed domain name and has not disputed the statements of the Complainant and the evidence provided by it.
The disputed domain name is confusingly similar to the distinctive PULLMAN trademark and to the name of the Complainant’s Pullman Cayo Coco hotel. This may well lead Internet users to believe that the disputed domain name refers to the official website of this hotel of the Complainant. The disputed domain name automatically redirects visitors to an active website that offers hotel booking services for various third-party hotels in a number of countries, and does not mention that the website is unrelated to the Complainant.
In view of the above, it appears to the Panel that the Respondent, being well aware of the attractiveness of the PULLMAN trademark, has registered and used the disputed domain name in an attempt to exploit the trademark’s goodwill for commercial gain by confusing Internet users and attracting them to the hotel booking website to which the disputed domain name redirects. In the Panel’s view, this conduct of the Respondent does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use, and therefore does not give rise to rights and legitimate interests of the Respondent in the disputed domain name.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
As discussed above, the disputed domain name is confusingly similar to the PULLMAN trademark and to the name of the Complainant’s Pullman Cayo Coco hotel. It resolves to an active website that offers hotel booking services for various third-party hotels in a number of countries. The Complainant contends that the Respondent has not received any authorization for its activities by the Complainant, and the Respondent does not dispute the statements of the Complainant and does not provide any plausible explanation about the registration and use of the disputed domain name.
Taking the above into account, the Panel accepts that the Respondent has registered and used the disputed domain name with knowledge of the Complainant and targeting the PULLMAN trademark. It is more likely than not that by creating a likelihood of confusion with the Complainant’s PULLMAN trademark, the Respondent has attempted to attract traffic to the disputed domain name and confuse Internet users that they are reaching the online location of the Complainant’s Pullman hotel in the island of Cayo Coco and then switch them to a hotel booking website offering third party hotels in competition to the Complainant and likely for commercial gain.
Therefore, the Panel finds that the disputed domain name has been registered and used in bad faith.
7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <pullmancayococo.com> be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: January 15, 2020
