WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Accor v. 孙文方 (Wen Fang Sun)

Case No. D2020-1915

1. The Parties

The Complainant is Accor, France, represented by Dreyfus & associés, France.

The Respondent is 孙文方 (Wen Fang Sun), China.

2. The Domain Name and Registrar

The disputed domain name <accorfoodwaste.com> is registered with Cloud Yuqu LLC (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 22, 2020. On July 23, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 24, 2020, 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 August 7, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint in English on August 10, 2020.

On August 7, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On August 10, 2020, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.

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 in English and Chinese of the Complaint, and the proceedings commenced on August 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 3, 2020.

The Center appointed Sok Ling MOI as the sole panelist in this matter on September 18, 2020. 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, founded in 1967, is a leading global hotel operator that owns, manages and franchises hotels, resorts and vacation properties, including hotel chains such as Fairmont, Raffles, Swissotel, Sofitel, Pullman, Novotel, Grand Mercure, and Ibis. The Complainant operates more than 4,500 hotels with 700,000 rooms in 111 countries worldwide, with 1,200 hotels with 232,500 rooms in Asia Pacific (including China).

The Complainant owns and operates several hotels under the trade mark ACCOR and is the proprietor of the following trade mark registrations:

The Complainant is also the registered proprietor of the domain names <group.accor.com> and <accor.com>.

The disputed domain name <accorfoodwaste.com> was registered on June 21, 2020. According to the evidence submitted by the Complainant, the disputed domain name resolves to a website containing sexual images with several links leading to contents of a pornographic nature.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is confusingly similar to its ACCOR trade mark. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.

The Complainant requests the transfer of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1 Language of the Proceeding

Pursuant to paragraph 11(a) 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.

Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the Parties are treated equitably and given a fair opportunity to present their respective cases.

The language of the Registration Agreements for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding.

The Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:

(a) the disputed domain name is registered in Latin characters, rather than Chinese script;

(b) the disputed domain name comprises the English words “food” and “waste”; and

(c) according to the evidence submitted by the Complainant (Annex 1), the contents of the website to which the disputed domain name resolves are in English.

Additionally, the Panel notes that:

(a) the Center has notified the Respondent of the proceeding in both Chinese and English;

(b) the Respondent has been given the opportunity to present his case in this proceeding and to respond to the issue of the language of the proceeding but has chosen not to do so; and

(c) the Center has informed the Respondent that it would accept a Response in either English or Chinese.

Considering the above circumstances, the Panel finds that the choice of English as the language of the present proceeding is fair to all Parties and is not prejudicial to any of the Parties in their ability to articulate the arguments for this case. The Panel has taken into consideration the fact that to require the Complaint and all supporting documents to be translated into Chinese would, in the circumstances of this case, cause an unnecessary cost burden to the Complainant and would unnecessarily delay the proceeding.

In view of all the above, the Panel determines under paragraph 11(a) of the Rules that it shall accept the Complaint and all supporting materials as filed in English, that English shall be the language of the proceeding, and that the decision will be rendered in English.

6.2 Substantive Findings

Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:

(i) the disputed domain name is identical or confusingly similar to a trade mark 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 disputed domain name has been registered and is being used in bad faith.

On the basis of the arguments and evidence introduced by the Complainant, the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel accepts that the Complainant has rights in ACCOR by virtue of its use and registration of the same as a trade mark.

The disputed domain name incorporates the Complainant’s ACCOR trade mark in its entirety. The addition of the dictionary terms “food” and “waste” in this case does not dispel the confusing similarity between the disputed domain name and the Complainant’s trade mark. The addition of the generic Top-Level Domain (“gTLD”) “.com” does not impact the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s trade mark in this case.

Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s ACCOR trade mark.

Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, a complainant bears the burden of establishing that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:

(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd, WIPO Case No. D2013-0974.)

The Complainant has confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the ACCOR trade mark or to seek registration of any domain name incorporating the ACCOR trade mark. The Respondent appears to be an individual by the name of Wen Fang Sun. There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term “accor”.

According to the evidence submitted by the Complainant, the disputed domain name resolves to a website containing sexual images with several links to supposed contents of a pornographic nature. The consensus view of previous UDRP panels is that use of a domain name to post parking and landing pages or pay-per- click links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a “bona fide offering of goods or services” or from “legitimate noncommercial or fair use” of the domain name.

The Panel is satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish his rights or legitimate interests in the disputed domain name. Since the Respondent did not file a response to the Complaint and has thus failed to offer any explanation for his registration of the disputed domain name, the prima facie case has not been rebutted.

Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name.

Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances, which, without limitation, shall be evidence of the registration and use of a disputed domain name in bad faith, namely:

(i) circumstances indicating that the respondent has registered or acquired the disputed 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 trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or

(ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

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

The Panel accepts that the Complainant and its trade mark ACCOR enjoy a strong reputation worldwide, including China where the Respondent is based. A strong presumption arises therefore that the Respondent was not unaware of the existence of the Complainant and its trade mark at the time of registering the disputed domain name. Registration of a domain name that incorporates a complainant’s well-known trade mark suggests opportunistic bad faith.

According to the evidence submitted by the Complainant, the disputed domain name resolves to a website containing sexual images with several links leading to contents of a pornographic nature. The consensus view of previous UDRP panels is that a domain name registrant is normally deemed responsible for content appearing on a website at its domain name, even if such registrant may not be exercising direct control over such content - for example, in the case of advertising links appearing on an “automatically” generated basis. The Panel notes the presumption that the Respondent or a third party stands to profit or make a “commercial gain” from advertising revenue by such an arrangement trading on third-party trade marks. In the Panel’s opinion, such links clearly seek to capitalise on the trade mark value of the Complainant’s ACCOR trade mark resulting in misleading diversion. The content appearing on the Respondent’s said website also serves to tarnish the Complainant’s trade mark. Such use of the disputed domain name cannot be in good faith. The Panel therefore determines that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.

Furthermore, efforts to send written notice of the proceedings to the Respondent at the physical address provided by the Respondent to the Registrar (and in turn to the Center) failed, which suggests that the Respondent had probably provided false contact details.

In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith.

Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of the Policy.

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 <accorfoodwaste.com> be transferred to the Complainant.

Sok Ling MOI
Sole Panelist
Date: October 9, 2020