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Accor v. Yossi Hasidim [2001] GENDND 1263 (2 July 2001)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

The Complainant in this administrative proceedings is ACCOR, a company organized under French laws, located at Tour Maine Montparnasse, 33, avenue du Maine, 75755 Paris, France and represented by Nathalie Dreyfus with offices at 19, rue de Milan, 75009 Paris, France, hereinafter the "Complainant".

The Respondent is Yossi Hasidim, with an address at Hanesieim, 48, Petah Tikva, 49550 Israel, hereinafter the "Respondent".

The domain name at issue is <accor-hotel.com>, hereinafter the "Domain Name". The registrar is Network Solutions, Inc. and the Domain Name was registered on November 26, 1999.

The WIPO Arbitration and Mediation Center, hereinafter "the Center" received the Complainant's Complaint and the exhibits on March 19, 2001, in hardcopy and on March 16, 2001, by email.

On March 21, 2001, the Center transmitted the acknowledgement of receipt of Complaint to the Complainant by email.

On March 22, 2001, the Center transmitted via email to Network Solutions, Inc., a request for registrar verification relating to this case. On March 28, 2001, Network Solutions, Inc. transmitted via email to the Center, Network Solutions’ verification response, confirming that the Domain Name is registered with Network Solutions, that the Respondent is the current registrant of the Domain Name and that the administrative, billing and technical contacts are also known as the Respondent. It confirmed also that the Network Solutions’ 5.0 Agreement is in effect and that the Domain Name registration status is "Active".

On March 30, 2001, the Center sent by email to the Complainant a request to amend the registrar's address and the Mutual Jurisdiction paragraph. A copy of this request was also sent by email to the Respondent.

On April 24, 2001, the Center received by email a modified version of the Complaint. On April 25, 2001, the Center acknowledged by email to the Complainant that the version sent on April 24 did not contain any of the amendments required in the email of March 30, 2001.

On May 3, 2001, the Center received by email an amendment to the Complaint as required in the email of March 30, 2001. On May 4, 2001, the same was received in hard copy.

On May 8, 2001, the Center sent to the Complainant an email regarding deficiencies in the amendment to the Complaint, such as the address used for sending a copy of the Complaint to the Registrar was incorrect and the absence of signature.

On May 11, 2001, the Center received the hardcopy of the second amendment to the Complaint.

On May 17, 2001, the Center completed its review of the Complaint to verify whether it satisfied the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules).

On May 17, 2001, the Center transmitted to the Respondent the notification of complaint and commencement of the administrative proceeding via post/courier, fax and email. This notification was copied to the Complainant via email. The Center advised that the Response was due by June 5, 2001.

On June 7, 2001, having received no Response from the Respondent, the Center issued to the email address of both parties, a notification of respondent default. No reply was received by the Respondent to the notification of respondent default.

On June 13, 2001, in view of the Complainant’s designation of a single member Administrative Panel, the Center invited Mr. Geert Glas to serve as a panelist and transmitted to him the request for declaration of impartiality and independence and a statement of acceptance.

Having received, on June 14, 2001, Mr. Geert Glas' declaration of impartiality and independence and his statement of acceptance, the Center transmitted by email on June 19, 2001, to the parties, a notification of appointment of administrative panel and projected decision date, informing the parties that Mr. Geert Glas was formally appointed as the sole panelist. The projected decision date is July 2, 2001. The sole panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.

Having reviewed the communication records in the case file, the Administrative Panel finds that the Center has discharged its responsibility under Paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Administrative Panel shall issue its Decision based on the Complaint, the Policy, the Rules, the Supplemental Rules and the verifiable facts but without the benefit of any Response from Respondent.

The Complainant is a hotel management company which runs business as well as leisure hotels in 90 countries, and also in Israel where the Respondent is a resident.

The Complainant is the owner of several French and international trademarks. Several of its trademarks consist of the word "ACCOR" as such, or accompanied by other elements. These trademarks have been registered for the goods and services of classes 16, 35, 38, 39, 41, 42 and are mainly used to offer to the public, goods and services in the hotel, tourism and travel industry.

It appears from Network Solutions’ verification response that the Respondent is the registrant of the Domain Name. The Respondent registered the Domain Name on November 26, 1999.

The website linked to the Domain Name is not active.

The Complainant contends that the Domain Name is confusingly similar to its trademark.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name since it is neither known by the Domain Name in question, nor has it made any legitimate non commercial or fair use of the Domain Name, nor has it made any use or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services.

The Complainant contends that the Respondent has registered the Domain Name in bad faith since the Respondent has obviously registered a domain name consisting of the Complainant's trademark with the word "hotel" in such a manner that the Domain Name describes precisely the services offered by the Complainant and therefore creates a confusion with the Complainant's trademark. The Complainant also contends that the Respondent has registered the Domain Name and for the purpose of preventing the Complainant from using its trademark in a corresponding domain name. It contends that the lack of reaction from the Respondent also shows bad faith.

Respondent has not contested the allegations of the Complaint and is in default.

Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall 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."

Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(1) that the Domain Name registered by the Respondent is identical or confusingly similar to the trademark in which the Complainant has rights; and,

(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and,

(3) that the Domain Name has been registered and used in bad faith.

a. Identity or confusing similarity

The trademarks of the Complainant consist of the word "ACCOR" alone or accompanied by other elements; Even in this last configuration, the word "ACCOR" remains the dominant and distinctive element of the trademark.

The sector of activity of the Complainant is tourism, travel and hotel facilities.

It is obvious that although the Respondent's Domain Name is composed of the word "ACCOR" followed by the word "hotel", the Domain Name is confusingly similar to the Complainant's trademark. Firstly, because it includes the Complainant's trademark and merely adds the generic word "hotel". Secondly, because by this combination, the Domain Name precisely describes the Complainant's sector of business.

The Administrative Panel therefore finds that the Domain Name is confusingly similar to the Complainant's trademark and finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied.

b. Rights or Legitimate Interests

The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating its trademark.

Moreover, by not filing a Response, the Respondent has failed to invoke any circumstance which could indicate the existence of any right or legitimate interest he would have in the Domain Name. Therefore, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is satisfied.

c. Registration and Use in Bad Faith

When registering the Domain Name, the Respondent knowingly and purposefully chose a name which is confusingly similar to Complainant's trademark.

Indeed, the choice of the Domain Name by the Respondent is very unlikely to have resulted from a mere coincidence.

The Respondent could not have been unaware of the Complainant's trademark, when choosing a domain name consisting of the Complainant's trademark and the word "hotel" with the result that the Domain Name describes exactly the services offered by the Complainant. By doing so, the Respondent intentionally created a situation which is at odds with the legal rights and obligations of the parties.

The website related to the Domain Name was inactive in March 2001, when a public notary, at the request of the Complainant, certified so, and still is at the time when the Administrative Panel is considering this case.

The Respondent is in default to respond in this proceedings, thereby failing to invoke any element or circumstance which could indicate the good faith nature of his registration and use of Domain Name. As a consequence, the Respondent has failed to demonstrate any bona fide use of the Domain Name.

Considering the lack of interest of the Respondent in the Domain Name, in the defense of his rights and interests as to the Domain Name and the above facts, the Administrative Panel finds that the Complainant has met its burden under section 4(a)(iii) of the Policy and that the Respondent has registered and used the Domain Name in bad faith.

In light of the foregoing, the Administrative Panel decides that the Domain Name registered by the Respondent is confusingly similar to the Complainant's trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent’s Domain Name has been registered and is being used in bad faith.

Accordingly, pursuant to Paragraph 4(i) of the Policy, the Administrative Panel requires that the registration of the Domain Name <hotel-accor.com> be transferred to the Complainant.

Geert Glas
Sole Panelist

Dated: July 2, 2001