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ACCOR v. Eduardo Marchiori Leite [2004] GENDND 1352 (15 October 2004)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ACCOR v. Eduardo Marchiori Leite

Case No. D2004-0680

1. The Parties

The Complainant is ACCOR, of Evry, France, represented by Cabinet Dreyfus & Associés, Paris, France.

The Respondent is Eduardo Marchiori Leite, Sao Goncalo, Rio de Janeiro, Brazil.

2. The Domain Name and Registrar

The disputed domain name <thalassar.com> is registered with Register.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2004. On August 26, 2004, the Center transmitted by email to Register.com a request for registrar verification in connection with the domain name at issue. On August 26, 2004, Register.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (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”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 1, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was September 21, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 22, 2004.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on October 1, 2004. 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 following facts and statements are derived from the Complaint and its annexed documents. The Respondent has not contested any of these facts and statements.

The Complainant is a worldwide well-known company in the field of hotels and restaurants. With more than 4,000 hotels and restaurants in the world and numerous trademarks such as, for example, THALASSA, SOFITEL, MERCURE, NOVOTEL, IBIS, and others, ACCOR has acquired a strong reputation of excellence recognized all around the world. With its Thalassa Hotel chain, ACCOR has developed thalassotherapy, thermal spa and beauty spa services.

The Complainant is the owner of numerous trademarks on the mark “THALASSA” in the field of hotels and restaurants and Internet services, including the following:

THALASSA INTERNATIONAL - International trademark registration number 0426388, filed on November 19, 1976, and covering goods and services in classes 5, 10, 11 and 42;

THALASSA INTERNATIONAL and design, International trademark registration number 0759327, filed on June 12, 2001, and covering services in class 42, including hotel and restaurant services.

THALASSA and design, International trademark registration number 0666241, filed on November 8, 1996, and covering services in class 39, including tourism and travel agencies, and class 42, including health services for care of the body.

THALASSA Brazilian trademark number 816836272 filed on August 19, 1992, and covering services in Brazilian class 39.

Moreover, since the Complainant has owned and operated a website at the domain name <thalassa.com>.

Respondent registered the disputed domain name <thalassar.com> on February 18, 2004. According to Complainant, and as shown in Annex 3 to the Complaint, the domain name <thalassar.com> initially resolved to a website which reproduced pictures of underwater plants. Subsequently, the domain name resolved to the webpage of Brasil Online, an Internet service provider.

On March 29, 2004, the Complainant sent a letter registered mail and by e-mail to the Respondent asking him to amicably transfer the domain name to the Complainant. While the e-mail version of the letter was delivered to the Respondent, the registered letter was returned to the Complainant due to the inexistence of the address. The notification of non-delivery of Complainant’s letter, a copy of which is attached to the Complaint, correctly states Respondent’s address as listed in the Whois extract. Thus, Respondent apparently did not disclose true and correct information regarding his identity as evidenced by the Whois extract attached to the Complaint, and the notification of non-delivery of Complainant’s letter, due to “address unknown” attached to the Complaint.

Furthermore, Respondent did not respond to the Complainant’s letters attempting to obtain an amicable transfer of the domain name, including Complainant’s reminder letter dated May 7, 2004, a copy of which is attached to the Complaint.

5. Parties’ Contentions

A. Complainant

Complainant contends that it has prior rights in the mark THALASSA which is incorporated in its entirety in Respondent’s domain name <thalassar.com>, with the addition of one extra letter - “r”. Complainant contends that the disputed domain name is confusingly similar to its registered THALASSA mark, that Respondent has no legitimate rights or interests in respect of the domain name and that Respondent has registered and is using the domain name in bad faith to mislead Internet users and disrupt the Complainant’s business. Complainant therefore contends that the domain name should be transferred to the Complainant.

B. Respondent

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

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel to “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.”

In view of the Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following to obtain an order that a domain name should be cancelled or transferred:

(i) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Complainant has established its prior rights in the mark THALASSA as indicated in its international trademark registrations and Brazilian trademark registration. Complainant is also the owner and operator of a website located at the domain name <thalassa.com>, which it registered in April, 1996.

Respondent’s domain name <thalassar.com> incorporates Complainant’s registered trademark THALASSA in its entirety, and adds only the letter “r” to the mark. The addition of the letter “r” adds nothing distinctive, and the emphasis remains on the name THALASSA to attract the attention of Internet users. The deletion or addition of one letter is an insignificant change for the purposes of the Policy paragraph 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., WIPO Case No. D2000-0441.

Accordingly, the Panel finds that the <thalassar.com> domain name is confusingly similar to Complainant’s THALASSAR trademark under Policy paragraph 4(a)(i).

B. Rights or Legitimate Interests

The Respondent is not affiliated with the Complainant, does not offer goods or services under the <thalassar.com> domain name, and is not known by such name. The Respondent’s domain name is linked to the website of a third party Internet service provider, Brasil Online, whose website is located at “www.dominios.com”.

Moreover, based on the Respondent’s failure to respond to the Complainant’s allegations, the Panel may assume that the Respondent has no rights to or legitimate interests in the disputed domain name. See Geocities v. Geociites.com, WIPO Case No. D2000-0326, and Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse, WIPO Case No. D2000-1221.

Accordingly, the Panel finds that the Complainant has established Policy paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

Respondent’s registration of the <thalassar.com> domain name that differs by only one letter from Complainant’s well known THALASSA mark supports the inference that Respondent had actual knowledge of Complainant’s rights in that mark when it registered the domain name.

Moreover, it appears that the Respondent has provided and failed to correct false contact details in breach of its registration agreement.

These findings, together with the finding that the Respondent has no rights or interests in the domain name, lead the Panel to conclude that the domain name <thalassar.com> has been registered by the Respondent in bad faith.

7. Decision

For all the foregoing reasons, in accordance with Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel orders that the domain name <thalassar.com> be transferred to the Complainant.

Lynda J. Zadra-Symes
Sole Panelist

Date: October 15, 2004