The Complainants are Accor and SoLuxury HMC of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Lan Guo Jing of Shanghai, China. 2. The Domain Names and Registrar
The disputed domain names , , , and (the "Domain Names") are registered with HiChina Zhicheng Technology Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 16, 2015. On September 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On September 18, 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 September 21, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On September 22, 2015, the Complainants confirmed their 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 9, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 30, 2015.
The Center appointed Karen Fong as the sole panelist in this matter on November 6, 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 First Complainant, Accor is a leading hotel and luxury hospitality services group operating more than 3,700 hotels in 92 countries worldwide and over 450,000 rooms, covering both economy and upscale properties. The group includes notable hotel chains such as Pullman, Novotel, Grand Mercure and Ibis. The Second Complainant, SoLuxury HMC is a wholly owned subsidiary of the First Complainant and part of the same group.
Pullman is the executive lifestyle upscale hotel brand with a network comprising more than 20 hotels, located in China in major cities and prime tourist destinations.
Sofitel is the luxury brand of SoLuxury HMC, the only French luxury hotel brand with a presence on five continents with 120 addresses, in almost 40 countries (more than 30,000 rooms). It continues to expand globally and in 2012 and 2013 have signed new contracts including in Shenyang in China.
Grand Mercure has operated in the Asia Pacific region for almost twenty years, establishing itself as a distinctive upscale collection of hotels and apartment hotels in key business and resort locations around the region. The Complainants have developed a Chinese equivalent brand for Grand Mercure - Mei Jue, designed specifically for travellers within China.
The Complainants own the following trade mark registrations for ACCOR, ACCOR HOTELS, PULLMAN, SOFITEL and GRAND MERCURE:
- International trade mark PULLMAN No. 1197984, registered on November 28, 2013 covering services in class 43;
- International trade mark PULLMAN No. 502625, registered on May 5, 1986 duly renewed covering services in classes 29, 30, 33 and 42;
- International trade mark PULLMAN HOTELS AND RESORTS No. 1188855, registered on October 10, 2013, designating China and covering services in class 43;
- International trade mark SOFITEL No. 939096, registered on August 30, 2007, designating China and covering services in classes 35, 36, 43 and 44;
- International trade mark GRAND MERCURE No. 900839, registered on September 29, 2006, designating China and covering services in class 43;
- International trade mark ACCORHOTELS No. 1103847, registered on December 12, 2011, designating China and covering services in classes 35, 39 and 43;
- Chinese trade mark PULLMAN No. 4734292 registered on February 7, 2009 in class 43.
The Complainants also operate the following domain names that incorporate their trade marks:
- registered on March 21, 1999.
- registered on April 30, 1998;
- registered on April 11, 1997;
- registered on October 25, 2004.
The Respondent registered the Domain Names on the following dates:
- registered on March 19, 2015;
- registered on March 2, 2015;
- registered on March 19, 2015;
- registered on March 26, 2015;
- registered on May 12, 2015.
The Domain Names are connected to active websites (the "Websites") that all reproduce the Complainants' trade marks and give the appearance of the web pages of a hotel with pictures of hotels, room rates, contact information, room availability search and online booking functions.
The Complainants' representative sent a cease and desist letter to the Respondent on July 8, 2015 and follow up reminders to which the Respondent did not reply. 5. Parties' Contentions
A. Complainants
The Complainants contend that the Domain Names are confusingly similar to the trade marks, ACCOR, ACCOR HOTELS, PULLMAN, SOFITEL and GRAND MERCURE, the Respondent has no rights or legitimate interests with respect to the Domain Names and that the Domain Names were registered and being used in bad faith. The Complainants request cancellation of the Domain Names.
B. Respondent
The Respondent did not reply to the Complainants' contentions. 6. Discussion and Findings
A. General
According to paragraph 4(a) of the Policy, for the Complainants to succeed in relation to the Domain Names, the Complainants must prove each of the following, namely that:
(i) the Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainants have rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Name were registered and are being used in bad faith.
B. Language of the Proceeding
The Rules, paragraph 11 provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceedings. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Names is Chinese.
The Complainants submit in paragraph IV of the Complaint and in an email to the Center on September 22, 2015 that the language of the proceeding should be English. The Complainants contend that they are based in France and have no knowledge of Chinese. Having to retain specialized translation services will increase cost and impose an additional burden on the Complainants. It would also cause delay in the proceeding. Further with English as the primary language for international relations, they contend that the proceeding should be conducted in English.
The Panel accepts the Complainants' submissions regarding the language of the proceeding. The Panel also notes that all the Websites have at the bottom of the page what appear to be language selection flags including the British flag. This indicates that it wishes to give the appearance of being able to communicate in English. The Complainants may be unduly disadvantaged by having to conduct the proceeding in Chinese especially in circumstances where the Respondent has elected not to file a response to the proceeding nor respond to the cease and desist letter and reminders. The Panel notes that all of the communications from the Center to the parties were transmitted in both Chinese and English. The Respondent cannot avail himself of the excuse that he had no knowledge or did not understand that this proceeding has been filed against him. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
C. Identical or Confusingly Similar
The Panel is satisfied that the Complainants have established that they have registered rights to the trade marks ACCOR, ACCOR HOTELS, PULLMAN, SOFITEL and GRAND MERCURE.
The threshold test for confusing similarity involves comparison between the trade mark and the domain name itself to determine likelihood of Internet user confusion. The trade mark would generally be recognizable within the domain name. In this case the Domain Names comprise the dominant element of each the Complainants' trade marks together with the additional geographical or generic terms (some of which are transliterations of the Chinese names of the hotels) "hotel", "xingji", "zx", "wanda", "sheshan" and "sbaolong". For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain ("gTLD") suffix. Further, the terms "hotel", "xingji" ( "兴基"), "zx" (abbreviated for Pinyin "zhongxing" or "中星"), "wanda" ( "万达"), "sheshan" ( "佘山") and "sbaolong" ( "s宝隆") do not negate the identity or confusing similarity encouraged by the Respondent's use of the Complainants' trade marks in the Domain Names.
The Panel finds that the Domain Names are identical or confusingly similar to a trade mark in which the Complainants have rights.
D. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers, or to tarnish the trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant right or legitimate interest, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.
The Complainants allege that the Respondent is not commonly known by the Domain Names. Neither is the Respondent affiliated with the Complainants nor authorized or licensed to use the trade marks ACCOR, ACCOR HOTELS, PULLMAN, SOFITEL and GRAND MERCURE or to register any domain names incorporating the trade marks. Further they contend that the Respondent has not demonstrated use of, or demonstrable preparations to use the Domain Names in connection with a bona fide offering of goods and services. The Websites offer booking services to hotels, which confused Internet users may assume are the Complainants, which may lead to customers of the Complainants disclosing confidential credit card information and other personal details to the Respondent. Such activities are not considered bona fide offering of services.
The Panel finds that the Complainants have made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Names.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names.
E. Registered and Used in Bad Faith
To succeed under the Policy, the Complainants must show that the Domain Names have been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent was aware of the Complainants' trade marks when it registered the Domain Names. The trade marks are widely known and it is highly unlikely that the Respondent ignored their substantial reputation in the field of hospitality when it registered the Domain Names. The very incorporation of the different trade marks belonging to the Complainants in the Domain Names and the use on the Websites of these trade marks in connection with the same services as that of the Complainants confirm the Respondent's awareness of the trade marks. It would be inconceivable that the Respondent had no knowledge of the trade marks when the Domain Names were registered.
Thus, the Panel concludes that the Respondent deliberately registered the Domain Names in bad faith.
The Panel also concludes that the actual use of the Domain Names were in bad faith. The Websites use the Complainants' trade marks and purport to offer hotel services under the Complainants' brands. There is a likelihood that these Websites could be used to phish for personal data and probably also financial information if users do attempt to book hotel rooms through the Websites.
From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Respondent's Websites are and the services offered are those of or authorised or endorsed by the Complainants. The above is clearly bad faith under paragraph 4(b)(iv) of the Policy and the Panel concludes that the Respondent's registration and use of the Domain Names were 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 Domain Names, , , , and be cancelled.
Karen Fong
Sole Panelist
Date: November 20, 2015
Full & Egal Universal Law Academy