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ACCOR v. Brigit Klostermann [2005] GENDND 1468 (8 August 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ACCOR v. Brigit Klostermann

Case No. D2005-0627

1. The Parties

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

The Respondent is Brigit Klostermann, SAR of China.

2. The Domain Name and Registrar

The disputed domain name <accorh0tels.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2005. On June 15, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name(s) at issue. On June 17, 2005, eNom 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 June 28, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was July 18, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 18, 2005.

The Center appointed Adam Samuel as the sole panelist in this matter on July 26, 2005. 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 is a French company specializing in travel, tourism and corporate services. It owns about 4,000 hotels in 90 countries. It owns two domain names, <accordhotels.com> and<accorhotel.com>. Through these sites, people can book hotel rooms provided by the Complainant.

The Complainant owns numerous trademark rights throughout the world in relation to hotels, restaurants and internet services.

- International trademark “ACCOR”, n° 742032, filed on August 25, 2000, and covering products and services in class 38 (Internet specification).

- International trademark “ACCOR” n° 537520, filed on March 28, 1989, and covering products and services in classes 5, 8, 9, 11, 18, 21, 24, 25, 28 and 37.

- International trademark “ACCOR” n° 480492, filed on November 10, 1983, and covering products and services in classes 16, 39 and 42 (hotels and restaurants services);

- International trademark “ACCOR” + logo N° 687060, filed on January 19, 1998, and covering products and services in classes 16, 36, 39, 41 and 42 (hotels and restaurants services).

- International trademark “ACCOR CASINOS” + logo N° 756453, filed on March 20, 2001, and covering products and services in classes 16, 41 and 42 (hotels and restaurants services).

- International trademark “ACCOR” + logo N° 616274, filed on March 17, 1994, and covering products and services in classes 16, 38, 39, and 42 (hotels and restaurants services);

- International trademark “ACCOR” + logo N° 727696, filed on December 28, 1999, and covering products and services in classes 16, 39, and 42 (hotels and restaurants services).

The Respondent has registered the domain name in dispute <accorh0tels.com>. The Complainant, through its lawyers, wrote on 7 January 2005 alleging registration and use in bad faith of this site and suggesting an amicable resolution of the problem. No reply was received from the Respondent.

5. Parties’ Contentions

A. Complainant

The Complainant’s case is that it is the owner of numerous trademark rights in the name “Accor” and that the domain name in dispute is a form of typosquatting. The use of a mistyped version of hotels after the Complainant’s trademark is a bad faith attempt to divert business away from the Complainant. The Respondent has no interest in the domain name as can be seen from the lack of response to the Complaint by the Respondent. The Complainant has never authorized the Respondent to use its trade names.

The combination of the name Accor and a misspelling of hotels, a major business area of the Complainant demonstrates the lack of good faith. This is emphasized by the fact that the site then redirects traffic to other hotel and holiday providers.

B. Respondent

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

6. Discussion and Findings

In order to succeed in its Complaint the Complainant has the burden of proof in showing that each element within paragraph 4(a) of the Policy is present. These are as follows:

(i) the domain name in dispute 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 domain name; and

(iii) the domain name was registered and is being used by the Respondent in bad faith.

The Panel proceeds to deal with each of these elements in turn.

A. Identical or Confusingly Similar

The Complainant owns numerous trademark rights in the name “Accor”. “Accorh0tel” is a combination of that name and a mistyped version of the word “hotel” in which the Complainant operates.

Essentially, there are two points here that are well-established in Domain Name Panel caselaw. First, where a domain name takes a mark of a company and then adds words descriptive of services it provides, the result is a domain name that is confusingly similar to the mark concerned. Secondly, typosquatting, the practice of misspelling an element of the mark, has consistently been regarded as creating domain names confusingly similar to the relevant mark.

As the Panel said in Deutsche Bank Aktiengesellschaft v. New York TV Tickets Inc., (WIPO Case No. D2001-1314):

“A disputed domain name which consists of the Complainant’s mark plus the addition of a descriptive word linked to the services that the Complainant markets can be confusingly similar to a mark. See Harrods Ltd v AB Kohler & Co - (WIPO Case No. D2001-0544) decision July 31, 2001, over the names <harrodswatch.com> and <harrodsjewellery.com>. PBS Bank Schwetz A.G. v. Tuzen (WIPO Case No. D2001-1311) is a case where the word ‘bank’ was added in the disputed domain name to the registered mark PBS. The Complainant was a well-known supplier of banking services. The Panel held that it was the juxtaposition of the word ‘bank’ with the letters of the mark which changed the whole complexion of the domain name from being one depicting anything at all to one connected with a banking institution.

There is a further reason for finding confusing similarity. In the Panel’s view, this is a case of ‘typosquatting’ where the domain name is a slight alphabetical variation from a famous mark. WIPO jurisprudence offers many examples of confusing similarity brought about through easily made typing errors by an Internet user – particularly when the mark is another language from that of the user’s mother tongue.

See for example, DaimlerChrysler Corporation v. Worshiping, Chrisler, and Chr, aka Dream Media and aka Peter Conover, WIPO Case No. D2000-1272 (mark:  Chrysler; domain names: crysler, chrisler, chrystier or christler) and Telstra Corporation Ltd v. Warren Bolton Consulting Pty Ltd., WIPO Case No. D2000-1293 (mark: bigpond; domain name: big pons).”

The Administrative Panel in Ross-Simons, Inc. v. Domain.Contact (WIPO Case No. D2003-0994) reached the same conclusion where, as in this dispute, the descriptive word linked to the trademark was incorrectly spelt with regard to some of the domain names in dispute even though the mark was accurately reproduced. It said:

“The other three disputed domain names (<ross-simons-diamonds.com>, <ross-simonsdimonds.com>, <ross-simon-diamonds.com>) comprise the Complainant's mark entirely or a slight variation of it, and add the word ‘diamonds’ or a misspelling of that word (dimonds). The sale of diamonds is associated with the Complainant's business. Therefore, the inclusion of the word ‘diamonds’ (and the misspelling of that word) in these three domain names strengthens the association, and therefore the confusing similarity, between the domain names and the Complainant’s mark.”

For all these reasons, the Panel concludes that the domain names are confusingly similar to a service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Respondent, by not responding to the Complaint, has not made any claim that it has any right or legitimate interest in the domain names. The Complainant says that it has never authorized the Respondent to use the Accor name or marks. The Respondent is not known by that name or anything similar.

The Respondent does not appear to be making a use of the domain name in connection with a bona fide offering of goods or services. Basically, its website seems to be designed to divert to its site people who are interested in services and products of the Complainant who mistype the word “hotel” It does this by using the Complainant’s trademark.

For these reasons, the Panel concludes that the Respondent has no right or legitimate interest in the domain names.

C. Registered and Used in Bad Faith

Without an explanation from the Respondent, it is difficult to know what motivated her to register the site. All we have is some basic facts. First, the name chosen is strikingly similar in appearance to the Complainant’s trademark and a description of one of its key activities, providing hotel rooms. The trademark, “Accor” does not in itself contain any indication of a hotel-related activity. So, the choice of Accor along with a mistyped version of “hotel” strongly indicates bad faith on the part of the Respondent.

The only explanation of what has happened is that the Respondent’s motive in registering and using the sites seems to be, as the Complainant says, simply to disrupt the Complainant’s relationship with its customers or potential customers or attempt to attract Internet users for potential gain. These both constitute evidence of registration and use in bad faith: paragraph 4(b)(iii) & (iv) of the Uniform Domain Name Dispute Resolution Policy (the “Policy”).

This conclusion is supported by the view expressed in Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568:

“Typosquatting is virtually per se registration and use in bad faith. It is difficult to conceive of circumstances that would overcome the inference that the typosquatter “intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s website… by creating a likelihood of confusion with the complainant’s mark as to the source” of the website. Here such conduct was undertaken to send Complainant’s customers to a site that promoted directly competing services.”

For all these reasons, the Panel concludes that the domain name was registered and is being used in bad faith.

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, <accorh0tels.com>, be transferred to the Complainant.

Adam Samuel
Sole Panelist

Dated: August 8, 2005