The Complainants are Accor (the “First Complainant”) and SoLuxury HMC (the “Second Complainant”) of Issy-Les-Moulineaux, France, both represented by Dreyfus & associés, France.
The Respondent is YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) of Beijing, China / Lin Qing Feng of Guangzhou, Guangdong, China. 2. The Domain Names and Registrars
The disputed domain names , , , and are all registered with HiChina Zhicheng Technology Limited. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 22, 2016. On June 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 23, 2016 the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 24, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed the first amended Complaint on June 29, 2016.
On June 24, 2016, the Center transmitted by email to the Parties a request for comment on the language of the proceedings. On the same day, the Complainant submitted a request for English to be the language of proceedings. The Respondent did not Comment on the language of proceedings.
The first amended Complaint included a request to remove one domain name from the Complaint and add two more disputed domain names. On June 29, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the two newly added disputed domain names. On June 30, 2016 the Registrar transmitted by email to the Center its verification response disclosing contact information for the two newly added disputed domain names which differed from the contact information in the Complaint. On July 1, 2016, the Center sent an email communication to the Complainant providing the contact information disclosed by the Registrar, and inviting the Complainant to include it in the Complaint. The Complainant filed the second amended Complaint on July 5, 2016.
On July 1, 2016, the Center transmitted by email to the Parties a request to comment on the language of proceedings regarding the two newly added disputed domain names. The Complainant submitted its request for English to be the language of proceedings regarding the two newly added disputed domain names on July 1, 2016. The Respondent did not comment on the language of proceedings regarding the two newly added disputed domain names.
The Center verified that the Complaint together with the first amended Complaint and the second amended 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 July 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 31, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 1, 2016.
The Center appointed Matthew Kennedy as the sole panelist in this matter on August 8, 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.
On August 8, 2016 the Respondent responded to the notice of appointment of the Panel in a brief email to the Center, in Chinese, describing it as clearly unofficial, questioning the need for a dispute and indicating that he would appeal to an international court. On August 9 and 12, 2016, the Respondent sent two further brief emails to the Center, in Chinese, regarding matters unrelated to this proceeding or the Policy. 4. Factual Background
The Complainants are part of the Accor Group, headquartered in France, which operates more than 3,900 hotels with over 510,000 rooms in 92 countries worldwide, including China. The group operates a range of hotel brands including Ibis, Novotel, Pullman and Sofitel. The First Complainant is the owner of multiple International trademark registrations, including No. 541432, IBIS, registered in 1989; No. 1097369, IBIS STYLES HOTELS and device, registered in 2011 and designating multiple jurisdictions, including China; No. 618550, NOVOTEL and device, registered in 1994, and designating multiple jurisdictions, including China; No. 785645, NOVOTEL, registered in 2002, and designating multiple jurisdictions, including China; No. 1188855, PULLMAN HOTELS AND RESORTS and device, registered in 2013 and designating multiple jurisdictions, including China; and No. 502625, PULLMAN, registered in 1986. The Second Complainant is the owner of International trademark registration no. 863332, SOFITEL, registered in 2005 and designating multiple jurisdictions, including China. These trademark registrations all designate hotel services in class 42 or 43, among others, and all are still in effect.
The Complainants’ hotels in China include the Ibis Styles Huizhou Xunliao Bay Hotel, the Novotel Nanjing Central, the Pullman Taiyuan, the Sofitel Xining and the Pullman Qingdao Airport (named the Qingdao Ziyue Pullman in Chinese). The Complainants offer online reservation services for their hotels at their official websites.
The Respondent is an individual located in China and the registrant of all the disputed domain names. The disputed domain names were registered on different dates during the period from March to September, 2015. Each of the disputed domain names resolves to a website in Chinese that purports to offer online booking services at one of the Complainants’ hotels. 5. Parties’ Contentions A. Complainant
The disputed domain names are confusingly similar to a trademark in which the Complainants have rights. Three disputed domain names reproduce the IBIS or PULLMAN trademark in its entirety. The addition of the descriptive terms “bay” and “hotel” does not discard any likelihood of confusion, nor does the addition of the geographical terms. Two disputed domain names reproduce the NOVOTEL and SOFITEL trademark with the addition of the letters “h” or “ho” before “tel” which constitutes typosquatting.
The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent is not affiliated with the Complainants in any way nor has he been authorized by the Complainants to use and register their trademarks or to register any domain names. Each disputed domain name resolves to a fraudulent website offering online booking services and reproducing the Complainants’ logos which is not a bona fide offering of goods and services but rather a non-legitimate use with intent for commercial gain.
The disputed domain names were registered and are being used in bad faith. It is implausible that the Respondent was unaware of the Complainants when he registered the disputed domain names. The Complainants are well-known and their trademarks cover China among other countries. The disputed domain names direct to webpages that are confusingly similar to the Complainant’s official websites but in Chinese version, with a non-official presentation of its hotels with photos and a non-official online booking service. B. Respondent
Besides three brief emails responding to the notice of appointment of the Panel, 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 Complainants have 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 each of the Complainants’ requests 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 takes 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. Besides three brief emails responding to the notice of appointment of the Panel, the Respondent has not expressed any wish to respond to the Complaint or otherwise participate in this proceeding. Therefore, 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. The Panel would have been willing to accept a formal Response filed in Chinese, but none was filed. 6.2 Consolidation of Multiple Procedures
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 all 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 procedures regarding all the 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 consisting of the word IBIS, NOVOTEL, PULLMAN and SOFITEL.
The disputed domain names , and each incorporate the Complainant’s IBIS or PULLMAN trademark in its entirety.
The disputed domain names and each incorporate the Complainant’s NOVOTEL or SOFITEL trademark with a minor difference. The minor difference consists of an additional “h” or “ho” in the middle of the trademark, which spells “hotel” when read with the following letters. These are mere typographical errors in the spelling of the Complainant’s trademarks, which are registered in respect of hotels. The Panel finds that the disputed domain names contain obvious misspellings of the Complainant’s trademarks, a practice commonly known as “typosquatting”. Therefore, the Panel does not consider these typographical differences capable of dispelling confusing similarity with the Complainant’s trademarks. (See Wachovia Corporation v. Peter Carrington,WIPO Case No. D2002-0775). The combination of these typographical differences with the other additional elements considered below does not alter the Panel’s view.
All the disputed domain names contain additional elements. Three disputed domain names contain the additional elements “xunliao-bay”, “taiyuan” or “xining” but these are merely geographic terms and not sufficient to dispel the confusing similarity of the disputed domain names to the Complainant’s trademarks (See Playboy Enterprises International, Inc. v. Zeynel Demirtas,WIPO Case No. D2007-0768). One disputed domain name contains the additional element “nj” but these are only two letters and, in any case, they serve as an abbreviation of the geographic term “Nanjing”, hence they are not sufficient to dispel the confusing similarity of the disputed domain name to the Complainant’s trademark either. One disputed domain name also contains the additional element “hotel” but this is merely a generic word and not sufficient to dispel the confusing similarity of the disputed domain name to the Complainant’s trademark (See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd.,WIPO Case No. D2001-0110). If anything, these additional elements increase the confusing similarity because the Complainant has a hotel of the corresponding brand located in each of places indicated.
The disputed domain name contains the additional element “ziyue”. That word is part of the Chinese name of one of the Complainant’s hotels, namely, the Qingdao Ziyue Pullman hotel. Therefore, the Panel does not consider that this word dispels the confusing similarity of the disputed domain name to the Complainant’s trademark. If anything, it increases the confusing similarity.
Four of the disputed domain names contain the additional element of a hyphen (in one case, two hyphens) but hyphens are merely punctuation and not sufficient to dispel the confusing similarity of the disputed domain names to the Complainant’s trademarks.
All the disputed domain names also contain the 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).
Therefore, the Panel finds that each of the disputed domain names is 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.
The Panel has already found that the disputed domain names are confusingly similar to at least one of the Complainant’s trademarks. The Complainant informs the Panel that the Respondent is not affiliated with the Complainant in any way nor has he been authorized by the Complainant to use and register its trademarks or to register any domain names. As regards the first circumstance above, each disputed domain name is being used with a website that purports to offer online booking services at one of the Complainant’s hotels. Nothing on each website discloses the lack of relationship between the Respondent and the Complainant; on the contrary, each website gives the impression that it is an official website of the Complainant’s hotel. This use is not in connection with a bona fide offering of goods or services. (See Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903). 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 “Lin Qing Feng”. There is no evidence indicating that the Respondent has been commonly known by any of the disputed domain names as envisaged by the second circumstance of paragraph 4(c) of the Policy.
As regards the third circumstance, each of the disputed domain names resolves to a website that offers online booking services for commercial gain. That is not a legitimate noncommercial or fair use of the disputed domain name covered by the third circumstance of paragraph 4(c) of the Policy.
In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent did not rebut that case because, although he questioned the need for this proceeding, he did not respond regarding the merits.
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 2015, years after the Complainant obtained its trademark registrations. The disputed domain names incorporate the Complainant’s trademarks, two with minor differences, in combination with terms that refer to one of the Complainant’s actual hotels. Each disputed domain name resolves to a website that displays the name of that actual hotel, including one of the Complainant’s trademarks. At least two of the websites also display one of the Complainant’s logos. This all indicates to the Panel that the Respondent was aware of the Complainant and its trademarks at the time that he registered the disputed domain names and deliberately chose to register them as part of the disputed domain names.
The Respondent uses the disputed domain names, which are confusingly similar to the Complainant’s trademarks, in connection with websites that purport to offer online booking services for rooms at the Complainant’s hotels. Each website gives the impression that it is an official website of the Complainant’s hotel when in fact the Respondent has no relationship with the Complainant. The Panel considers that this use of the disputed domain names intentionally attempts to attract, for commercial gain, Internet users to the websites by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s websites or of the products on those websites.
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 First Complainant and that the disputed domain name be transferred to the Second Complainant.
Matthew Kennedy
Sole Panelist
Date: August 11, 2016
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