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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Accor v King [2005] DRS 2800 (13 September 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/2800.html Cite as: [2005] DRS 2800

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NOMINET UK DISPUTE RESOLUTION SERVICE DRS 2800

Accor –v- Dominic King

Decision of Independent Expert

1. Parties:

Complainant: Accor.

Country: France

Respondent: Dominic King

Country: South Korea

2. Domain Name:

novotels.co.uk

3. Procedural Background:

The Complaint was lodged with Nominet in full on 21 July 2005. Nominet validated the Complaint and notified the Respondent of the Complaint on the same day that he had to lodge a Response by 12 August 2005. No Response was filed. On 22 August the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 7 of the Nominet UK Dispute Resolution Service Policy ("the Policy").

Cerryg Jones, the undersigned, ("the Expert") confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality.

4. Outstanding Formal/Procedural Issues (if any):

There are no outstanding procedural issues that arise.

5. The Background:

The Complainant is one of the world's largest groups in travel, tourism and corporate services. It operates the well known Novotel chain of hotels, and is the owner of a number of national, international and Community trade marks for the mark Novotel for a wide range of goods and services. The earliest registration (according to the evidence submitted by the Complainant) dates back to 1968. The Complainant operates much of its business through the website www.novotels.com.

The Respondent registered the disputed domain name, novotels.co.uk, ("the Domain Name") on 28 Setember 2004. Nothing else is known about the Respondent. The Domain Name resolves to a blank page.

The Complaintant sent a letter before action to the Respondent seeking the transfer of the Domain Name. No response was received.

6. The Parties' Contentions:

The Complainant alleges that the Respondent's registration is abusive because:

1. The Respondent is not affiliated to the Complainant.

2. The Respondent has not been authorised to use the Complainant's trade marks or to register any domain names incorporating its trade marks.

3. The Respondent is not known under the Novotel mark.

4. The Respondent is not making any legitimate commercial or fair use of the Domain Name.

5. The Respondent is diluting the reputation of the Novotel trade mark and its image by directing users to an inactive page.

6. The Domain Name is likely to be an initial guess of an internet user seeking the Complainant's website and hence constitutes a blocking registration

7. Discussion and Findings:

Paragraph 2 of the Policy requires that for the Complainant to succeed it has to prove to the Expert on a balance of probabilities, that it has rights in respect of a name or mark identical or similar to the Domain Name and that the Domain Name in the hands of the Respondent is an abusive registration (as defined in paragraph 1 of the Policy).

Complainant's Rights

The Complainant has rights in the name "Novotel" as a result of its trade under the name, and in its various corresponding registered trade marks. I find that the Complainant has rights in respect of a name or mark that is very similar to the Domain Name.

Abusive Registration

The Complainant also has to show that the domain name is an abusive registration. Paragraph 1 of the Policy defines this as a domain name which either:

i. was registered or otherwise acquired in a manner, which at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR

ii. has been used in a manner, which took unfair advantage of or was unfairly detrimental to the Complainant's Rights."

A non-exhaustive list of factors, which may be evidence of an abusive registration, are set out in paragraph 3a of the Policy. However, these are only examples of conduct, which may be evidence that a domain name is an abusive registration.

The potentially relevant factors in this Complaint are contained in subparagraphs 3 a i B and C and 3 a ii that is:

3 a i Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:

B. as a blocking registration against a name or mark in which the Complainant has rights

C. primarily for the purpose of unfairly disrupting the business of the Complainant;

In the absence of a Response, the Complainant's evidence and submissions establish on a balance of probabilities the following facts and matters:

1. That the Complainant has been engaged in the business of hotel services and related activities under the mark for a number of years.

2. That the Complainant's business and trade mark registrations predate the Respondent's registration of the Domain Name.

3. That the Complainant has not authorised the Respondent to use the Domain Name.

4. That the Respondent or his business (if any) is not known by the Domain Name.

In the absence of a Response, there is no evidence or other circumstances from which I can reasonably infer legitimate or fair use of the Domain Name. In my view, a significant number internet users in the UK searching for information about the Complainant and its products will type in www.novotels.co.uk into their browsers and thereby be taken to an inactive page over which the Complainant has no control. Although internet users have become increasingly sophisticated, it would in my view be unreasonable to assume that everyone visiting the inactive page would find their way eventually to www.novotels.com. In my view therefore the Respondent's registration and use of the Domain Name is calculated to unfairly disrupt the Complainant's business given the similarity between the Domain Name and the Complainant's well known trade mark Novotel (at least in the sense that such disruption is an inevitable and foreseeable consequence of the Respondent's registration and use of the Domain Name). Furthermore, such registration and use operates as an illegitimate threat which the Respondent could exploit at any time, given the lack of control the Complainant has over the Domain Name.

In my view, the Domain Name has been used in a manner which takes unfair advantage of or is unfairly detrimental to the Complainant's rights. Accordingly, I find that the domain name is an abusive registration.

8. Decision:

In the light of the foregoing findings, namely that the Complainant has rights in respect of a name or mark which is similar to the Domain Name and that the Domain Name, in the hands of the Respondent, is an abusive registration, I direct that the Domain Name be transferred to the Complainant.

Cerryg Jones 13 September 2005