The Complainants are Starwood Hotels & Resorts Worldwide, Inc. and Sheraton International IP, LLC of Stamford, Connecticut, United States of America (the "Complainant(s)"), represented by Fross Zelnick Lehrman & Zissu, PC, United States of America.
The Respondent is yurumiao of Guangzhou, Guangdong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 6, 2015. On April 7, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 8, 2015, 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.
On April 9, 2015, the Center sent an email communication in both Chinese and English to the parties regarding the language of the proceeding. On the same day, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 in both Chinese and English, and the proceeding commenced on April 15, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 6, 2015.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 11, 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 A. Complainant
The Complainants are companies incorporated in the State of Maryland and in the State of Delaware in the United States of America, respectively, and the owners of numerous international and national registrations for the trade mark ST. REGIS (the "Trade Mark"), the earliest registration dating from 1995. The Trade Mark has been used continuously since 1904. B. Respondent
The Respondent is an individual apparently with an address in China. C. The Disputed Domain Name
The disputed domain name was registered on July 21, 2014. D. The Website at the Disputed Domain Name
The disputed domain name has been used in respect of a website which is a copy of the Complainant's official website for its St. Regis hotels, which contains the Trade Mark on every page of the website, and which reproduces photographs and images from the Complainant's official website (the "Website"). 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that English be the language of the proceeding, as both the disputed domain name and the Website are entirely in the English language.
The Respondent did not file a Response and did not file any submissions with respect to the language of the proceeding.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judiciously in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties' ability to understand and use the proposed language, time and costs.
The Panel finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant in the English language. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding, noting that the disputed domain name, as well as a version of the Website, are in English.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain name by over 100 years.
UDRP panels have consistently held that a domain name is identical or confusingly similar to a trade mark for purposes of the Policy "when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name". See Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662.
The disputed domain name comprises the Trade Mark in its entirety together with the generic article "the" and the geographical term "Sanya", a popular resort community in the Hainan province of China where the Complainant operates a hotel under the Trade Mark (with two more to open soon), which does not serve to distinguish the disputed domain name from the Trade Mark in any significant way.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to the Respondent of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the Respondent has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent's registration of the disputed domain name by over 100 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the evidence suggests the disputed domain name has been used in respect of the Website, which makes unauthorised use of the Trade Mark and has been set up to falsely come across as an official or authorised website of the Complainant.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name, and that paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith
The Respondent has been using the disputed domain name in order to pass off the Website as a website of or otherwise authorised or approved by the Complainant. The Website appears to offer booking services for one of the Complainant's hotels, indicating that the Respondent receives financial gain from Internet users misled into believing the Website is approved by the Complainant. This is clear evidence of bad faith. The Panel therefore finds, in all the circumstances, the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes 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 Starwood Hotels & Resorts Worldwide, Inc.
Sebastian M.W. Hughes
Sole Panelist
Dated: May 25, 2015
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