The Complainant is Six Continents Hotels, Inc. of Atlanta, Georgia, United States of America (“United States”), represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States.
The Respondent is zhao ge of Hefei, Anhui, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 11, 2014. On December 11, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 12, 2014, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on December 17, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 6, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 7, 2015.
The Center appointed Matthew Kennedy as the sole panelist in this matter on January 15, 2015. 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 company within the InterContinental Hotels Group (“IHG”). Companies within the IHG own, manage, lease or franchise, through various subsidiaries, 4,760 hotels and 697,048 guest rooms, serving 161 million guests annually in nearly 100 countries and territories around the world. IHG owns a portfolio of hotel brands including Holiday Inn Hotels and Resorts and Holiday Inn Express. The Complainant’s Holiday Inn brand was founded in 1952 and today is used in connection with 1,149 hotels worldwide.
The Complainant has registered trademarks that consist of, or contain, the mark HOLIDAY INN, including in the United States where the oldest of these were registered in 1954. The Complainant or its affiliates also owns trademarks in China, the oldest of which was registered in 1986.
According to the Registrar’s WhoIs database, the disputed domain name was registered on May 18, 2011. The name of the registrant, who is the Respondent in this proceeding, is zhao ge. His or her contact details comprise a street address supposedly in Hefei, Anhui province, combined with a postcode for a town in Guangdong province, and a telephone number with the Singapore international dialing code. The express courier has to date been unable to deliver the Written Notice to that address.
The Respondent is using the disputed domain name for a website in Chinese offering reservation services for a hotel, the name of which can be translated as “Pudong Shenggao Holiday Inn”, purportedly located at the address of one of the Complainant’s actual hotels in Pudong, Shanghai, China.
The disputed domain name was locked by the Registrar during this administrative proceeding and it remains locked at the time that this decision is issued. 5. Parties’ Contentions A. Complainant
First, the Complainant argues that the disputed domain name is confusingly similar to its HOLIDAY INN trademark for the following reasons:
1. The Complainant (or its affiliates) owns more than 1,700 registrations in at least 200 countries or geographic regions worldwide, including the United States and China, for trademarks that consist of or contain the mark HOLIDAY INN;
2. Many previous panels under the Policy have found that the Complainant in this proceeding has strong rights in and to the HOLIDAY INN trademark; and
3. The disputed domain name contains the HOLIDAY INN trademark in its entirety plus the letters “pdsg” – which the Complainant asserts are an abbreviation for the geographic names “Pudong” and “Shanghai.” The fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy. Many panels under the Policy have found that use one of the Complainant’s trademarks in its entirety plus a geographic term in a domain name creates a domain name that is confusingly similar to the relevant trademark.
Second, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name for the following reasons:
1. The Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the HOLIDAY INN trademark in any manner;
2. Upon information and belief, the Respondent has never used, or made preparations to use, the disputed domain name or any name corresponding to the disputed domain name in connection with a bona fide offering of goods or services;
3. To the Complainant’s knowledge, the Respondent has never been commonly known by the disputed domain name and has never acquired any trademark or service mark rights in the disputed domain name; and
4. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the Complainant’s HOLIDAY INN trademark.
Third, the Complainant argues that the disputed domain name should be considered as having been registered and used in bad faith by the Respondent for the following reasons:
1. By using the Complainant’s HOLIDAY INN trademark on a website offering hotel services via a domain name that also contains the HOLIDAY INN trademark, the Respondent quite obviously has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the HOLIDAY INN trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service on the Respondent’s website;
2. The Respondent has created a website that appears to be a website for the Complainant;
3. The HOLIDAY INN trademark is a well-known, internationally recognized mark registered in many countries or geographic regions worldwide and there can be no doubt that the Respondent knew of the Complainant’ trademark when it registered the disputed domain name, leading to evidence of bad faith; and
4. All of the Complainant’s trademarks pre-date the Respondent’s registration of the disputed domain name, some by more than 60 years. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must establish that each of the three following criteria is satisfied:
(i). the disputed domain name 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Evidence provided by the Complainant shows that it has registered trademark rights and continues to have such rights in trademarks consisting of or containing the words “Holiday Inn”. The evidence includes copies of six such trademarks in the United States registered in respect of hotel services. Exclusive use of the word “inn” is disclaimed, apart from as shown in the registrations. The earliest registrations date from 1954 and all those provided are still current. The evidence also includes a copy of one trademark registration in China for HOLIDAY INN in a particular script, first registered in 1986 in respect of pens, ink and liquid inks, and still current.
The 2013 IHG annual report (at pages 14-15) shows that worldwide the Holiday Inn brand is used in relation to 1,168 hotels with 212,058 rooms; the Holiday Inn Express brand is used in relation to 2,258 hotels with 214,597 rooms and that IHG also has Holiday Inn Resort and Holiday Inn Club Vacations brands. The Panel agrees with previous panel decisions under this Policy which have referred to the HOLIDAY INN mark as being famous or well-known, including: Six Continents Hotels, Inc. v. Ameriasa,WIPO Case No. D2002-1132; Six Continents Hotels, Inc. v. Asia Ventures,WIPO Case No. D2003-0659; Six Continents Hotels, Inc. v. CredoNIC.com / Domain For Sale,WIPO Case No. D2005-0755; Six Continents Hotels, Inc. v. Jan Pavlik, WIPO Case No. D2007-0472; Inter-Continental Hotels Corporation, Six Continents Hotels, Inc. v. Daniel Kirchhof,WIPO Case No. D2009-1661; Six Continents Hotels, Inc. v. Ahmed Marzooq,WIPO Case No. D2012-0757.
The Complainant has also provided evidence which shows that in China, it franchises or manages 68 hotels with 21,951 rooms under the Holiday Inn brand, and that it franchises or manages 49 hotels with 12, 858 rooms under the Holiday Inn Express brand, as at September 30, 2014.
The disputed domain name incorporates the word elements of the Complainant’s HOLIDAY INN trademark in their entirety, with the addition of the letters “pdsg” at the beginning and the generic Top-Level Domain (“gTLD”) suffix “.com”. The incorporation of an entire trademark in a domain name has previously been considered sufficient to establish confusing similarity to that trademark despite the addition of other words: see, for example, Oki Data Americas, Inc. v. A,WIPO Case No. D2001-0903.
The letters “pdsg” are an additional element in the disputed domain name. Although the letters “pdsg” are the initial element in the disputed domain name, the Complainant’s trademark still comprises the major part of the disputed domain name. The Panel does not find that the letters “pdsg” are an abbreviated form of “Pudong Shanghai” as asserted by the Complainant but rather finds that these letters combined with the Complainant’s trademark refer to the name of the hotel displayed in Chinese on the website associated with the disputed domain name, which can be translated as “Pudong Shenggao Holiday Inn”. This comprises most of the name of the Complainant’s hotel at the same address in Pudong as shown on the Chinese version of the Complainant’s website, which is “Holiday Inn” (in English) “Shanghai Pudong Shenggao Holiday Inn”. Given the fame and reputation of the Complainant’s trademark, and the fact that “pdsgholidayinn” is an abbreviated reference to one of the Complainant’s hotels, the disputed domain name gives the misleading impression to the average Internet user that the website associated with the disputed domain name is for one of the Complainant’s hotels. The letters “pdsg” do not dispel the confusing similarity of the disputed domain name to the Complainant’s trademark.
The suffix “.com” is also an additional element in the disputed domain name. It is well-established that a gTLD suffix is typically disregarded when assessing identity or confusingly similarity between a domain name and a trademark.
Therefore, the Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests
The evidence shows that the Respondent is using the Complainant’s trademark to offer hotel reservation services purportedly at a hotel operated by or affiliated with the Complainant, purportedly located at the actual address of one of the Complainant’s official hotels. The Complainant confirms that it has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the HOLIDAY INN trademark in any manner. There is no evidence before the Panel that the Complainant has ever done so. This indicates that the use to which the disputed domain name is being put is not a noncommercial or fair use. This type of use does not create rights or legitimate interests in the disputed domain name: see Accor and Soluxury HMC v. Yu Gang,WIPO Case No. D2012-1593.
The evidence indicates that the Respondent is named zhao ge. There is no evidence before the Panel that he or she, as an individual, business, or other organization has ever been commonly known by the disputed domain name. The Complainant informs the Panel that it is not aware of any such evidence.
The Complainant also submits that it is not aware of any evidence that the Respondent has ever used, or made preparations to use, the disputed domain name or any name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
The Panel finds that the Complainant has discharged its burden of proof of the second criterion of paragraph 4(a) of the Policy. Therefore, the burden shifts to the Respondent to rebut the Complainant’s contentions. The Respondent has failed to make submissions to demonstrate that it has rights or legitimate interests in the disputed domain name which might rebut the Complainant’s case.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, evidence of the registration and use of a domain name in bad faith includes the following:
(i) 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.
In this proceeding, the Respondent has used the disputed domain name to resolve to a website that displays the Complainant’s HOLIDAY INN trademark in the same colour, script and position as on the Complainant’s website, combined with the Chinese version of that trademark, and which has a similar layout to the Complainant’s website. The website offers hotel reservation services at a hotel with basically the same name as one of the Complainant’s official Holiday Inn hotels, at the same address, but it displays a different contact telephone number (a local Shanghai number). This evidence indicates that the Respondent has used the disputed domain name to operate what appears to be a website for a hotel owned or operated by or affiliated with the Complainant in order to confuse Internet users and divert hotel reservation business, and that it has done so intentionally. The Panel finds that paragraph 4(b)(iv) of the Policy aptly describes this evidence. Previous UDRP panels have reached this conclusion in similar circumstances: see Six Continents Hotels Inc. v. “m on”,WIPO Case No. D2012-2525; Six Continents Hotels, Inc., v. Bunjong Chaiviriyawong,WIPO Case No. D2013-1942. In addition, the Respondent has provided false contact information when registering the disputed domain name.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Matthew Kennedy
Sole Panelist
Date: January 29, 2015
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