The Complainants are Accor (the "First Complainant") and SoLuxury HMC (the "Second Complainant") of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Hui Ya Jiu Dian Guan Li You Xian Gong Si of Chengdu, Sichuan, China. 2. The Domain Names and Registrar
The disputed domain names are and . Both are registered with Foshan YiDong Network Co., LTD (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 24, 2015. On November 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On November 27, 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 November 30, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On December 2, 2015, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on December 7, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 27, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 28, 2015.
The Center appointed Matthew Kennedy as the sole panelist in this matter on January 7, 2016. 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 Complainants are part of the Accor corporate group, headquartered in France, which operates more than 3,700 hotels with over 450,000 rooms in 92 countries worldwide. The group operates a range of hotel brands including "Mercure", "Grand Mercure" and "Sofitel".
The First Complainant has registered the words GRAND MERCURE as a trademark (International trademark registration no. 900,839, designating China, registered from 2006 covering goods and services in multiple classes including hotel services and reservation services for hotel rooms in class 43). The Second Complainant has registered the word SOFITEL as a trademark (International trademark registration no. 642,172, designating China, registered from 1995 covering services in multiple classes including hotel and restaurant services in class 42). These trademark registrations remain in force. The Complainants also operate websites at the domain names , and .
According to the Registrar's WhoIs database, the disputed domain names were registered on September 22 and 18, 2014. The Registrar confirmed that the name of the registrant is "Hui Ya Jiu Dian Guan Li You Xian Gong Si". Days prior to the initiation of this proceeding, each of the disputed domain names resolved to a different website that provided information on a hotel unrelated to the Complainants. Both websites included a button labeled "reservations". During this proceeding, the disputed domain names did not resolve to any active website. 5. Parties' Contentions A. Complainant
The Complainants enjoy a worldwide reputation and own numerous trademark registrations comprising the words MERCURE, GRAND MERCURE and SOFITEL. The disputed domain names reproduce entirely these trademarks, which previous panels have considered to be "well-known" or "famous". The additional elements do not dispel any likelihood of confusion with the Complainants' trademarks.
The Complainant submits that the Respondent has no prior rights or legitimate interest in the domain names. The Respondent is not commonly known by the names "mercure", "grand mercure" and "sofitel" or in any way affiliated with Complainants, nor authorized or licensed to use the trademarks or to seek registration of any domain name incorporating them. The Respondent did not demonstrate use of, or demonstrable preparations to use, the domain names in connection with a bona fide offering of goods or services.
The Complainants' trademarks MERCURE, GRAND MERCURE and SOFITEL are well-known throughout the world including China where Respondent is located. The reputation of the trademarks, the fact that the disputed domain names reproduce them in their entirety, the addition of the generic term "hotel" referring to Complainants' field of activity in one disputed domain name and the content of the websites to which the disputed domain names resolve, prove that the Respondent was aware of the existence of Complainants' trademarks. The disputed domain names resolve to websites related to hotels and offering an online booking service which created a strong likelihood of confusion for the Complainants' clients who could believe that these are official websites offering authentic services online. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of Proceeding
Paragraph 11(a) of the Rules provides that "unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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 proceeding". The Registrar confirmed that the Registration Agreement for each of the disputed domain names is in Chinese.
The Complainants request that the language of the proceeding be English. Their main arguments are that the Complainant has no knowledge of Chinese and that the cost of translation would impose a significant burden.
The Panel notes that all the Center's email communications with the Parties have been in both Chinese and English. The Respondent was given an opportunity to object to the Complainants' request that English be the language of the proceeding but the Respondent did not in fact object.
Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties (See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293).
The Panel observes that in this proceeding the Complaint was filed in English. The Respondent has not expressed any wish to respond to the Complaint or otherwise participate in this proceeding. The Panel considers that requiring the Complainants to translate the Complaint into Chinese would create an undue burden and delay.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. 6.2 Consolidation of Multiple Disputes
The Complaint was filed by two complainants against a single respondent. The Second Complainant is a wholly-owned subsidiary of the First Complainant. The Respondent is the registrant of both disputed domain names, each of which is alleged to be confusingly similar to trademarks owned by either the parent company or the subsidiary company. Therefore, the Panel finds it efficient to permit the consolidation of the disputes regarding both disputed domain names (See Société Générale and Fimat International Banque v. Lebanon Index/La France DN and Elie Khouri, WIPO Case No. D2002-0760). The Complainants are referred to below collectively as "the Complainant" except as otherwise indicated. 6.3 Analysis and Findings
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
(i) the disputed domain names are 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 names; and
(iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
Based on the evidence submitted, the Panel finds that the Complainant has rights in registered trademarks GRAND MERCURE and SOFITEL.
Each of the disputed domain names incorporates one of the Complainant's trademarks in its entirety. One of the Complainant's trademarks is the dominant element of each disputed domain name. One disputed domain name contains the additional element "hotel" while the other disputed domain name contains the additional element "galaxy", which are both merely generic words and, as such, not sufficient to dispel the confusing similarity of the disputed domain names to the Complainant's trademarks (See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd.,WIPO Case No. D2001-0110).
Both disputed domain names also contain the generic Top-Level Domain ("gTLD") suffix ".com" but a gTLD suffix generally has no capacity to distinguish a domain name from a trademark (See Lego Juris A/S v. Chen Yong, WIPO Case No. D2009-1611; Dr. Ing. H.c. F. Porsche AG v. zhanglei,WIPO Case No. D2014-0080). Both disputed domain names also include a hyphen, which is merely punctuation and not sufficient to dispel any confusing similarity.
Consequently, the only distinctive element of the disputed domain names for the purposes of this comparison is identical to one of the Complainant's trademarks.
Therefore, the Panel finds that the disputed domain names are confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
(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 trademark 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 trademark or service mark at issue.
As regards the first circumstance, the evidence shows that the disputed domain names were being used with websites offering hotel information and reservation services in relation to hotels unrelated to the Complainant. The Complainant states that it has no connection with the Respondent. Given that the disputed domain names are each confusingly similar to one of the Complainant's trademarks, the Panel considers that the Respondent's websites were very likely to confuse Internet users. These facts show that the Respondent's use of the disputed domain names is not in connection with a bona fide offering of goods or services. Accordingly, the Panel does not find that the Respondent's use falls within the first circumstance of paragraph 4(c) of the Policy.
As regards the second circumstance, the Respondent's name is Hui Ya Jiu Dian Guan Li You Xian Gong Si. None of the evidence submitted indicates that the Respondent has been commonly known by the disputed domain names as foreseen in the second circumstance of paragraph 4(c) of the Policy.
As regards the third circumstance, the websites with which the disputed domain names were being used offered hotel information and reservation services. The Complainant submitted to the Panel copy of an email from the Respondent dated March 7, 2015 in which the Respondent admitted using the disputed domain names to operate a hotel booking service. While he asserted that he did not receive fees directly from guests who made bookings, the use of the disputed domain names was clearly commercial and not otherwise a fair use, hence not covered by the third circumstance of paragraph 4(c) of the Policy.
In summary, the Panel considers that the Complainant has prima facie discharged its burden of proof that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The burden now shifts to the Respondent to show that he does have some rights or legitimate interests, but the Respondent did not respond to the Complaint.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:
"(iv) by using the [disputed] domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] 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 [the Respondent's] web site or location or of a product or service on [the Respondent's] web site or location."
The Respondent registered the disputed domain names in 2014, several years or more after the Complainant obtained its trademark registrations, including in China where the Respondent is located. The only distinctive element of each disputed domain name is identical to one of the Complainant's trademarks. The websites with which both disputed domain names were used offered hotel booking and reservation services in relation to hotels unrelated to the Complainant. This indicates to the Panel that the Respondent intentionally chose to register the Complainant's trademarks and use them as domain names.
The Respondent uses the disputed domain names, which wholly incorporate the Complainant's trademarks, with websites to offer hotel booking and reservation services. Yet the Respondent has no connection with the Complainant or its hotels. The addition of the element "hotel" to one of the disputed domain names also increases the likelihood of confusion with the Complainant's services. Given all these facts, the Panel considers that the Respondent's use of the disputed domain name intentionally attempts to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or of the products on that website.
Therefore, the Panel finds that the disputed domain names have been registered and are being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy. 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 names and be transferred to the Complainant.
Matthew Kennedy
Sole Panelist
Date: January 8, 2016
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