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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ACOR, Society Anonyme a Directoire et Conseil de Surveillance v. SEOCHO
Case No. D2002-0517
1. The Parties
The Complainant is Accor, Society Anonyme a Directoire et Conseil de Surveillance, 2 Rue De La Mare Neuve, 91000, Evry, France.
The Respondent is SEOCHO of 1336-2 Seocho-2Dong, Seocho-ku, Seoul, 137-072, Republic of Korea.
2. The Domain Name and Registrar
The Domain Name in dispute is <ibishotels.com>.
The Registrar of the Domain Name is Bulkregister.com, Inc.
3. Procedural History
The Complaint was filed on June 3, 2002. The WIPO Arbitration and Mediation Center (the "Center") verified that the Complaint satisfies 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") and that payment was properly made. The panelist is satisfied this is the case.
The Complaint was properly notified in accordance with Rules, paragraph 2 (a) and no Response was filed by the Respondent. The Respondent is in default.
The Complainant elected to have the dispute decided by a single member Administrative Panel and on 29 July, 2002 Dawn Osborne was duly appointed as panelist in accordance with Rule 6(e) and the due date for the Panel's decision was set as August 12, 2002.
4. Factual Background
The Complainant is the owner of the famous trade mark IBIS and owns registrations for this mark for, inter alia, hotel and restaurant services, in many countries worldwide including Korea where the registrant is based.
The Respondent, based in Korea registered the Domain Name on May 30, 2001, and has not responded to the Complaint. The Domain Name was pointed to "www.hotwire.com", a web site relating to discount hotel reservations. Then it was pointed to "www.onetravel.com". Both links were apparently made without these site owners’ permission or knowledge. The Domain Name is currently pointed to "www.ownbox.com" featuring sections on, inter alia, sex and gambling. The site also has links to "www.digforgold.com" which has links offering hotel services at "www.vipfares.com".
5. Parties’ Contentions
Submissions in the Complaint include:
The Complainant is the owner of over 180 registered trade marks throughout the world in more than 90 countries for IBIS, HOTEL IBIS and device marks including the IBIS word mark and has three such trade mark registrations in Korea. It has had rights in the IBIS mark since March 1975.
The Complainant has hotels in many countries all over the world and is one of the best known trade marks for hotels and restaurants being regularly advertised and promoted.
The Complainant discovered the registration by the Respondent of the Domain Name in May 2002. A letter before action was sent but received no response.
The Domain Name consists of the Complainant’s trade mark IBIS and the generic word "hotels", hotels being the Complainant’s business. It is also confusingly similar to the Complainant’s trade marks for HOTEL IBIS. Consumers will obviously be led to think that the owner of the Domain Name is in partnership with the Complainant.
The Respondent has no legitimate interest or rights in the Domain Name. The Complainant has not licensed or permitted the Respondent to use its trade marks or to register any domain names containing its trade marks. Before the Domain Name was registered the Respondent had not carried out any business under the name IBIS, nor was it commonly known by this name.
The Respondent registered the Domain Name and is using it in bad faith. It had not been known by the trade mark IBIS prior to registration, whereas the Complainant had a worldwide reputation for the mark IBIS for hotels. The Respondent must have known of the Complainant and registered the Domain Name in bad faith.
The registration and use of the Domain Name is likely to cause confusion. Consumers searching the who is register are likely to believe that the Respondent is the Complainant or that they had formed a partnership.
The Domain Name was registered to disrupt the business of a competitor. It has been linked to hotel and travel related sites not linked with the Complainant, but with its major competitors. Since the Complaint was lodged the Domain Name has been pointed to a further site "www.ownbox.com" featuring sections on, inter alia, sex and gambling. The site also has links to "www.digforgold.com" which has links offering hotel services at "www.vipfares.com".
The Respondent has not filed a Response and is in default.
6. Discussion and Findings
According to paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark 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 Confusing Similarity
The Domain Name consist of the Complainant’s well known IBIS registered mark and the generic word "hotels", reflecting the very business with which the Complainant is concerned. The addition of the word "hotels" does not serve to distinguish the Domain Name from the Complainant’s well known mark, but indeed compounds the likelihood of confusion between the Domain Name and the Complainant’s trade mark. The Domain Name is also confusingly similar to the Complainant’s registered trade mark HOTEL IBIS.
B Rights or Legitimate Interest of the Respondent
The Respondent has not filed a Response and does not appear to have any rights or legitimate interest in the Domain Name.
C Bad Faith
Paragraph 4 (b) of the Rules sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including (paraphrasing and using the correct paragraph numbers):
(i) the Respondent has registered or has acquired the 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 that complainant for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the 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 domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
There is no evidence that the Respondent has engaged in a pattern of cybersquatting conduct sufficient to satisfy paragraph 4 (b) (ii).
There is no evidence that the Respondent is a competitor of the Complainant sufficient to satisfy paragraph 4 (b) (iii). Although, he does appear to have pointed the Complainant’s Domain Name to sites associated with the Complainant’s competitors without their knowledge or permission.
It does appear that the Respondent has attempted to cause confusion amongst Internet or email users between the Complainant’s mark and goods and services offered on sites to which the Respondent has pointed the Domain Name. However, it is not clear that the Respondent has received commercial gain from the sites to which the Domain Name was pointed as he appears to have had no commercial arrangement with them and it is not clear what benefit he accrued from the links. The position with the third site is also not clear. It does not appear to be associated with the Respondent.
However, given, in particular, the well known nature of the Complainant’s mark, the Complainant’s longstanding use of the mark and the existence of trade mark registrations for the Complainant’s IBIS mark in Korea where the Respondent is based for hotel services, the panelist finds it difficult to accept that the Respondent registered the Domain Name without knowledge of the Complainant’s rights. The panel is entitled to draw appropriate adverse inferences from the failure of the Respondent to submit any Response to the Complaint.
The pointing of the Domain Name to sites of the Complainant’s competitors is clearly behaviour designed to encourage the Complainant to make an offer to purchase the name from the Respondent. Alternatively, the Respondent may have been trying to demonstrate the value of the Domain Name to the Complainant’s competitors with a view to trying to sell the Domain Name to them.
The fame and well known nature of the Complainant’s mark and the Respondent’s conduct leads the panel to believe that the Respondent registered the name primarily for the improper purpose of selling, renting, or otherwise transferring the Domain Name registration to the Complainant or to a competitor of the Complainant for valuable consideration in excess of the Respondent’s documented out-of-pocket costs of registration of the Domain Name sufficient to satisfy paragraph 4 (b) (i) or the general overriding criterion of bad faith which is not limited to the four strict circumstances listed in paragraph 4 (b).
Accordingly, the panel finds that the Domain Name has been registered and is being used in bad faith.
In the light of the foregoing, the panel decides that the Domain Name is confusingly similar to the Complainant’s well known trade mark IBIS and the Respondent has no rights or legitimate interests relating to the Domain Name which was registered and is being used in bad faith.
Accordingly, in the light of the above, the panel requires that the registration of the Domain Name <ibishotels.com> BE TRANSFERRED to the Complainant.
Dated: August 12, 2002