The Complainants are Marriott International, Inc. (”First Complainant”), Marriott Worldwide Corporation (“Second Complainant”), and the Sheraton LLC (“Third Complainant”), all in the United States of America (“United States”), represented by FairWinds Partners, LLC, United States.
The Respondents are Shun LI (李顺), and Xiao Yuan YANG (杨小苑), both in China. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 26, 2020. On February 27, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 28, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 4, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center also sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On March 9, 2020, the Complainant filed an amended Complaint and confirmed its request that English be the language of the proceeding. The Respondent did not comment. On March 18, 2020, the Center sent an email to the Parties regarding consolidation of disputes against multiple named respondents. The Center verified that the Complaint together with the 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, in English and Chinese, of the Complaint, and the proceedings commenced on March 20, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 9, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 15, 2020. The Center appointed Matthew Kennedy as the sole panelist in this matter on April 24, 2020. 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 is the parent company of the Second and Third Complainants. The First and Second Complainants operate Marriott hotels around the world. The First Complainant has obtained multiple trademark registrations, including United States trademark registration number 899900 for the trademark MARRIOTT, registered on September 29, 1970, with a claim of first use in commerce in July 1960, and specifying hotel and restaurant services in international class 42. The Third Complainant operates Sheraton hotels around the world, including the Four Points by Sheraton line of hotels. The Third Complainant holds multiple trademark registrations, including United States trademark registration number 679027 for SHERATON, registered on May 19, 1959, with a claim of first use in commerce on May 1, 1958, and specifying motel or roadside hotel and restaurant services in international class 42; and United States trademark registration number 5246050 for FOUR POINTS BY SHERATON, registered on July 18, 2017 with a claim of first use in commerce on June 26, 1995, specifying hotel and restaurant services, reservation services for hotel accommodations and other services in international class 42. These three trademark registrations remain current. The Respondents are named as two individuals located in China. Their contact email addresses in the Registrar’s WhoIs database are almost identical (the only difference being that one username contains the word “china” while the other contains its abbreviation “cn”). Those contact email addresses are associated with a total of over 150 other domain name registrations, most of which incorporate a hotel trademark, often in combination with a place name or the word “hotel”, or both. The disputed domain names were both registered on July 10, 2019. They formerly resolved to websites, each with a Chinese and an English version, that purportedly offered reservation services at the Complainants’ Courtyard Shanghai Xujiahui hotel or Four Points By Sheraton hotels. Each site prominently presented an introduction to the Marriott or Sheraton brand. The contact telephone number on both websites was the same fixed line number in Shanghai. After inputting check-in and check-out dates in the reservation forms on these sites, the Internet user was directed to a webpage that invited the input of the user’s name, credit card number, expiry date and security code, mobile phone number and email address. At the time of this decision, neither disputed domain name resolves to any active website; rather, they are both passively held. 5. Parties’ Contentions A. Complainant Apart from their use of the “.top” generic Top-Level Domain (“gTLD”) suffix, each of the disputed domain names is either identical to, or at least confusingly similar on its face, to one of the Complainants’ distinctive and globally famous trademarks. One disputed domain name is an identical copy of the Complainant’s FOUR POINTS BY SHERATON mark. The other disputed domain name incorporates the MARRIOTT mark, merely adding the highly relevant word “hotel”. The Respondent has no rights or legitimate interests in respect of the disputed domain names. The associated websites and the room reservation services purportedly offered therein are not affiliated with the Complainants, and the Respondent has no license or other authority to use the MARRIOTT mark or the SHERATON marks in any way. The Respondent’s actions are not a bona fide offering of goods or services. The Respondent is not commonly known by either of the disputed domain names. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain names without intent for commercial gain. The disputed domain names were registered and are being used in bad faith. The Respondent intentionally targeted the Complainants’ marks without consent from the Complainants. The Respondent was on actual notice of the Complainants’ rights in their globally famous marks as a result of the Complainants’ extensive use of and registrations for the marks which long predate the registration of the disputed domain names. The Respondent is seeking commercial gain from its registration and use of the disputed domain names. When an Internet user visits one of the associated websites and inputs preferred booking dates at the displayed hotel property, they are given the opportunity to either receive illegitimate travel agency commissions from the Respondent based on its misuse of the Complainants’ trademarks, or possibly to perpetuate a fraud upon the user by offering rooms at an inflated price or by not providing any room reservations at all. B. Respondent The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings 6.1 Procedural Issues A. Multiple Complainants The Complaint was filed by three Complainants. The First Complainant is the parent company of the Second and Third Complainants. The registration and use of the disputed domain names have affected the Complainants’ individual rights in the same fashion. The Panel finds that the Complainants have a common grievance against the Respondents and that it is procedurally efficient to permit the consolidation of their complaints. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.1. Therefore, the Complainants are referred to below collectively as “the Complainant” except as otherwise indicated. B. Multiple Respondents The Complaint initiates disputes in relation to two nominally different domain name registrants. However, pursuant to paragraph 3(c) of the Rules, the Complainant requests consolidation of these disputes. The disputed domain name registrants did not comment on the Complainant’s request. Paragraph 3(c) of the Rules states that a complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder. The Complainant alleges that the disputed domain names are owned by the same person who is seeking to mask their true identity. The Panel does not consider that paragraph 3(c) of the Rules was intended to enable a person in such circumstances to put a complainant to the unnecessary time, expense and effort of initiating multiple proceedings against technically different domain name registrants, particularly when each registration raises the same issues. In addressing the Complainant’s request, the Panel will consider whether (i) the disputed domain names or corresponding websites are subject to common control; and (ii) the consolidation would be fair and equitable to all Parties. See WIPO Overview 3.0 , section 4.11.2. As regards common control, the Panel notes that (i) the disputed domain names were registered with the same Registrar on the same day within 15 minutes of each other; (ii) the contact email addresses in the WhoIs database for the disputed domain names are nearly identical; and (iii) the disputed domain names resolved to very similar websites displaying the same contact telephone number. In these circumstances, the Panel is satisfied that the disputed domain names are under common control or indeed that the named registrants are the same person. As regards fairness and equity, the Panel sees no reason why consolidation of the disputes would be unfair or inequitable to any Party. Accordingly, the Panel decides to consolidate the disputes regarding the disputed domain name registrants in a single proceeding. Therefore, they are referred to below collectively as “the Respondent” except as otherwise indicated. C. 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 Agreements for the disputed domain names are in Chinese. The Complainant requests that the language of the proceeding be English. Its main arguments are that the Respondent is capable of communicating in the English language, given that the disputed domain names incorporate English words and resolve to websites almost entirely in English and that the use of a language other than English would impose an unwarranted cost and burden on the Complainant. The Respondent did not comment on the language of the proceeding. 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 and amended Complaint were filed in English. Each of the websites to which the disputed domain names resolve has an English version, from which it is reasonable to infer that the Respondent understands that language. Moreover, the Respondent did not reply to the Complaint or indicate any wish to participate in this proceeding. In these circumstances, the Panel considers that requiring the Complainant to translate the amended 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 accepted a Response in Chinese, but none was filed. 6.2 Substantive Issues Paragraph 4(a) of the Policy provides that a complainant must prove each of the following elements with respect to each disputed domain name: (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 FOUR POINTS BY SHERATON and MARRIOTT marks. The disputed domain name The disputed domain name Both disputed domain names include a gTLD suffix (i.e., “.top”), which is a technical requirement of registration. A gTLD suffix is disregarded in the comparison between a domain name and a trademark for the purposes of the first element of the Policy unless it has some impact beyond its technical function, which is not the case here. Therefore, the Panel finds that each 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 set out above, the disputed domain names formerly resolved to websites that were presented as if they were websites operated by, or affiliated with, the Complainant and that purportedly offered reservation services at the Complainant’s Courtyard Shanghai Xujiahui hotel and Four Points By Sheraton hotels. The Complainant advises that these websites are not in fact affiliated with the Complainant, and that the Respondent has no license or other authority to use the Complainant’s marks in any way. At the time of this decision, the disputed domain names do not resolve to any active website. The Panel finds that neither the former use of the disputed domain names in connection with websites, nor their current passive use, is a use in connection with a bona fide offering of goods or services within the terms of paragraph 4(c)(i) of the Policy. As regards the second circumstance, the Registrar’s verification email indicates that the Respondent’s names are “Shun Li (李顺)” and “Xiao Yuan Yang (杨小苑)”, not either of the disputed domain names. There is no evidence that the Respondent has been commonly known by the disputed domain name within the terms of paragraph 4(c)(ii) of the Policy. As regards the third circumstance, the disputed domain names formerly resolved to websites purportedly offering hotel reservation services that were operated for commercial gain but now passively held. Neither use is a legitimate noncommercial or fair use within the terms of paragraph 4(c)(iii) of the Policy. In view of the above circumstances, 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 prima facie 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 either 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 names in 2019, after the Complainant obtained its trademark registrations. Each disputed domain name wholly incorporates the Complainant’s FOUR POINTS BY SHERATON mark or its MARRIOTT mark, and one of them adds the descriptive word “hotel”. The associated websites presented introductions to the Sheraton and Marriott hotel brands and purportedly offered reservations at the Complainant’s hotels, from which it can be inferred that the Respondent was aware of the Complainant and its marks at the time of registration of the disputed domain names. Therefore, the Panel finds that the Respondent registered the disputed domain names in bad faith. The Respondent formerly used the disputed domain names in connection with websites that were presented as if they were operated by, or affiliated with, the Complainant and purportedly offered reservation services at the Complainant’s hotels in exchange for payment. The Panel considers that the Respondent’s use of the disputed domain names 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 a product or service on that website within the terms of paragraph 4(b)(iv) of the Policy. The Panel notes that the use of the disputed domain names has changed since the commencement of this proceeding and that they no longer resolve to any active website. This does not alter the Panel’s conclusion and may, in fact, constitute a further indication of bad faith. Therefore, the Panel finds that each 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 names Matthew Kennedy
Sole Panelist
Date: April 30, 2020
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