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ACCOR v. Mr. Young Gyoon Nah [2004] GENDND 1329 (24 October 2004)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ACCOR v. Mr. Young Gyoon Nah

Case No. D2004-0681

1. The Parties

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 postmaster@accorservice.com, and the proceedings commenced on September 10, 2004. The fax and email transmission to postmaster@accorservice.com 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