WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Hotel Services Company LLC v. Xiaojie Yu Case No. D2009-0647 1. The Parties
Complainant is Hotel Services Company LLC, St. Louis, Missouri, United States of America, represented by Bryan Cave, LLP, United States of America.
Respondent is Xiaojie Yu, Shanghai, People Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with Network Solutions, LLC (the “Domain Name”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 13, 2009. On May 14, 2009, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the disputed domain name. On May 14, 2009, Network Solutions, LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on May 20, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 9, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 12, 2009.
The Center appointed Clive L. Elliott, John Swinson and Dr. Hong Xue as panelists in this matter on July 1, 2009. The Panel finds that it was properly constituted. Each member of 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
Complainant is a privately-held, Missouri-based hotel system. Complainant, through its parent company, Drury Hotels Company, LLC, and through various licensees, provides motel services at 114 locations across 19 states in the USA. For approximately thirty-five years, Complainant or its predecessors in interest has been engaged in the provision of hotel and motel services under the DRURY mark. More specifically, it has provided hotel and motel services under the DRURY SUITES and DRURY INN & SUITES marks for approximately ten years.
Complainant is the registered proprietor of a number of trademark registrations including the following:
DRURY SUITES (U.S. Registration No. 1,772,627) for “motel services,” in International Class No. 42;
DRURY (U.S. Registration No. 1,874,354) for “motel services,” in International Class No. 42;
DRURY INN & SUITES (U.S. Registration No. 2,091,304) for “motel services,” in International Class No. 42;
Complainant inadvertently allowed its registration of the Domain Name to lapse.
Respondent registered and commenced use of the Domain Name. On April 1, 2009, Respondent or its agents offered to sell the Domain Name back to Complainant for USD7,500.00. The offer was refused and these proceedings commenced. 5. Parties' Contentions A. Complainant
Complainant asserts that through its continuous and widespread use of the DRURY SUITES mark, as well the promotion of its goods and services on the “” website, that the DRURY SUITES mark has gained substantial notoriety, secondary meaning, and consumer recognition, as identifying Complainant's quality motel services.
It is asserted (without contradiction) that Respondent's website, at “www.”, offers a range of hotel and motel services, as well as other travel-related services through search category headings containing links to various third party vendors. Further, it is noted that the hyperlinked headings and categories on Respondent's website are purposefully intended to imitate and/or mirror those that a consumer might expect to see on Complainant's own authentic website ─ for example, Respondent's hyperlinked headings include “Drury,” “Drury Inn,” “Drury Inn and Suites,” and “Reservations.”
Further, it is stated that Respondent's website contains a prominent improper “trademark use” of “DruryS” at the top of the home page, and even lists “Drury Inn,” “Drury Inn And Suites,” “Hotels Drury,” and “Drury” in a list of categories on the left side of the page. Complainant contends that this will falsely imply endorsement or affiliation.
Complainant submits that the Domain Name is identical to Complainant's mark, was procured in bad faith, and is being used by Respondent without justification and in bad faith. That is, solely for the improper and unethical purpose of illegally profiting upon Complainant's valuable DRURY and DRURY SUITES marks. Further, it is submitted that this conduct will mislead, deceive and misdirect consumers.
Finally, Complainant asserts that it has conducted a WhoIs search for Respondent's name, which indicates that Respondent has registered or is otherwise connected with a large number of domain name registrations, some of which appear to infringe upon the rights of legitimate trademark owners. Details are provided. On this basis it is submitted that Respondent is a “serial cyber squatter” engaged in a consistent pattern of bad faith registration and use of domain names. B. Respondent
Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant or its predecessors in interest has provided hotel and motel services under the DRURY and DRURY SUITES trademarks. Complainant is also the proprietor of trademark registrations comprising DRURY and DRURY SUITES (hereinafter together referred to as “the Trademarks”).
There is merit in Complainant's submission that it is the owner of the Trademarks and that they are being used by Respondent without justification and that this conduct is likely to mislead, deceive and misdirect consumers.
It is clear on the evidence that the Domain Name comprises or includes the Trademarks and that the Trademarks are clearly identifiable with the Domain Name. Respondent has had the opportunity to do so but has declined to explain why it registered the Domain Name. As a result, the Panel has no difficulty in finding that the Domain Name is the same as or confusingly similar to the Trademarks.
It finds that Complainant has rights in the Trademarks, that the Trademarks comprise a dominant and confusing part of the Domain Name, and that the requirements of paragraph 4(a)(i) of the Policy are met. B. Rights or Legitimate Interests
Respondent is not apparently affiliated with Complainant in any way and has not been authorized by Complainant to use and register its trademarks or to seek the registration of any domain name incorporating the Trademarks.
The registration and use of the Trademarks preceded the registration of the Domain Name. The Domain Name makes an obvious and direct reference to the Trademarks and the notoriety and consumer recognition identifying Complainant's hotel and motel services.
Complainant asserts that Respondent's website contains the prominent use of “DruryS” at the top of the home page, and lists “Drury Inn,” “Drury Inn and Suites,” “Hotels Drury,” and “Drury” in a list of categories on the page. Complainant submits that this will falsely imply endorsement or affiliation. These assertions and submissions are not disputed. The Panel finds that such activity is not consistent with any rights or legitimate interests on Respondent's part.
It is therefore established that Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that Respondent has registered and uses the Domain Name in bad faith.
In the circumstances of this case, it is not difficult, in the absence of any evidence to the contrary, to infer that Respondent knew or must have known of Complainant's Trademarks at the time it registered the Domain Name. Complainant or its predecessors in interest has provided hotel and motel services under the Trademarks for a number of years. There is sufficient evidence to establish that Complainant's hotel and motel services had a well-established reputation in their field.
Finally, Complainant asserts that Respondent has registered or is otherwise connected with a large number of domain name registrations, some of which appear to infringe upon the rights of legitimate trademark owners and accordingly that Respondent is a “serial cyber squatter”. Again, this assertion stands uncontradicted. While the Panel expresses no view on whether Respondent is a “serial cyber squatter” there does seem to be evidence of a pattern of questionable registration of domain names arguably belonging to others.
This enables the Panel to conclude that the Domain Name was both registered and used in bad faith in accordance with paragraph 4(a)(iii) of the Policy. 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 be transferred to Complainant.
Clive L. Elliott
Presiding Panelist
John Swinson
Panelist
Dr. Hong Xue
Panelist
Dated: July 24, 2009
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