The Complainant is B B.V. of Amsterdam, the Netherlands, self-represented.
The Respondent is Chen Guo Long of Hangzhou, Zhejiang, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February.16, 2017. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 17, 2017, 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 February 21, 2017, the Center transmitted an email in English and Chinese 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.
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 in English and Chinese, and the proceedings commenced on February 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 20, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 21, 2017.
The Center appointed Matthew Kennedy as the sole panelist in this matter on March 27, 2017. 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 owns and operates its online accommodation reservation service “www.b”. The Complainant was established in 1996 and its service now reserves, on average, over 1,200,000 room nights every 24 hours. The Complainant has registered BOOKING.COM trademarks in multiple jurisdictions, including European Union trademark registration number 008955353, registered from October 5, 2011, and International trademark registration number 1104711, registered from December 15, 2011. Both registrations specify services in multiple classes and they remain in effect.
The Respondent is an individual located in China and the registrant of the disputed domain name. The disputed domain name was registered on December 23, 2016. The disputed domain name previously resolved to a video-on-demand website that made available a large number of films and television shows as well as photographs, and displayed links to a large number of other websites. Some of the website’s content was pornographic. Banners at the top of the website, and in a copyright notice at the bottom, displayed the Complainant’s official website address “www.b”, which incorporates the Complainant’s BOOKING.COM trademark. HTML meta tags on the website also contained the Complainant’s official website address. The disputed domain name currently resolves to an inactive website. 5. Parties’ Contentions A. Complainant
The disputed domain name is identical and/or confusingly similar to the Complainant’s BOOKING.COM trademark. The disputed domain name incorporates the Complainant’s BOOKING.COM trademark in its entirety, but without the dot between the two elements “booking” and “com”. Consequently, the disputed domain name is as identical to the Complainant’s trademark as it is possible to be for a top-level domain name within the limitations of the character set permissible.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The disputed domain name currently redirects to a landing page that displays advertisements that link to explicit/sexual content. Such use does not constitute a bona fide offering of goods or services and cannot be considered as a fair use of the disputed domain name either. It would appear that the purpose of the registration is to pass off as the Complainant and/or prevent the Complainant from owning the disputed domain name.
The disputed domain name was registered and is being used in bad faith. The Complainant was widely known under its registered trademark at the time of registration of the disputed domain name. It is inconceivable that the Respondent was not aware of the Complainant at that time. A copyright notice on the Respondent’s website and the HTML code for that website make express reference to the Complainant’s website. This shows that the Respondent directly targets the Complainant and tries to hijack Internet traffic intended for the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the 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 the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main arguments are that (1) translation into Chinese would incur costs likely to be higher than the overall cost of this proceeding and would also cause an undue delay; and (2) it is very likely that the Respondent understands English because the disputed domain name is in Latin script, the HTML code of his website is full of text in English and, further, the Respondent holds many other domain name registrations that are composed of English words. The Respondent did not comment on the language request.
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 the Complaint in this proceeding was filed in English. 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 Complainant 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 Substantive Issues
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
(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
Based on the evidence submitted, the Panel finds that the Complainant has rights in the BOOKING.COM trademark.
The disputed domain name wholly incorporates the Complainant’s BOOKING.COM trademark but for the full stop within the trademark. The full stop cannot be displayed within a label in a domain name for technical reasons and its omission is too minor to dispel confusing similarity with the Complainant’s trademark. See “Dr. Martens” International Trading GmbH, “Dr. Maertens” Marketing GmbH v. Li Ai,WIPO Case No. D2012-1017.
The only additional element in the disputed domain name is the generic Top-Level Domain (“gTLD”) suffix “.xyz”. A gTLD suffix is generally disregarded in assessing confusing similarity between a domain name and a trademark. See Philip Morris USA Inc. v. Sakaria Mohamoud mussafah,WIPO Case No. D2014-1667.
Therefore, the Panel finds that the disputed domain name 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.
As regards the first circumstance above, the disputed domain name is being used with a video-on-demand website. The Panel has already found that the disputed domain name is confusingly similar to the Complainant’s BOOKING.COM trademark. While the word “booking” is a dictionary word, the term “bookingcom” is not. Nothing on the website indicates a legitimate reason why the Respondent would choose to register a domain name including the term “bookingcom”. All these facts indicate that the Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services covered by the first circumstance of paragraph 4(c) of the Policy.
As regards the second circumstance above, the Registrar’s WhoIs database indicates that the Respondent’s name is “Chen Guo Long”. The website to which the disputed domain name resolves displays the Chinese business name “全能影视”which may be translated as “All-round film and television”. Neither name is “bookingcom” or anything similar. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by the second circumstance of paragraph 4(c) of the Policy.
As regards the third circumstance above, the website falsely claims that the owner of the copyright in the website is the Complainant and displays the Complainant’s official website address and trademark, which indicates that the use of the disputed domain name targets the Complainant’s trademark in an attempt to attract Internet users to the Respondent’s website and is not an attempt to describe that website’s content in a manner that would constitute fair use. Even if it were not a commercial use, which seems unlikely, this would not be a “legitimate” noncommercial or fair use of the disputed domain name covered by the third circumstance of paragraph 4(c) of the Policy. See Reliant Energy, Inc. v. Robert Wiggins,WIPO Case No. D2001-0769.
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 name. The Respondent did not rebut that case because he 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 name. 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] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
The Respondent registered the disputed domain name in 2016, several years after the Complainant obtained its trademark registrations. The disputed domain name wholly incorporates the Complainant’s BOOKING.COM trademark, but for the full stop, with no additional element besides a gTLD suffix. The Complainant has made extensive use of its trademark. The Respondent’s website falsely claims that the owner of the copyright in the website is the Complainant and displays the Complainant’s official website address, including the Complainant’s trademark. The HTML meta tags on the website also show that the Respondent knew of the Complainant’s website address. This all gives the Panel reason to believe that the Respondent was not only aware of the Complainant and its BOOKING.COM trademark at the time that he registered the disputed domain name but that he also deliberately chose to register it as part of the disputed domain name in bad faith.
The Respondent uses the disputed domain name, which is confusingly similar to the Complainant’s BOOKING.COM trademark, in connection with a video-on-demand website displaying links to many other websites. The disputed domain name operates by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. This use is intentional. It is more likely than not that the website operates for the commercial gain of the Respondent or the operators of the linked websites, or both. Therefore, the facts satisfy the requirements of paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that the disputed domain name has been registered and is 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 name be transferred to the Complainant.
Matthew Kennedy
Sole Panelist
Date: March 31, 2017
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