The Complainant is Accor of Evry, France, represented by Dreyfus & associés, France.
The Respondent is Ning Yang of Victoria, Australia. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 21, 2011. On January 24, 2011, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On January 24, 2011, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 28, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was February 17, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 21, 2011.
The Center appointed William L. LaFuze as the sole panelist in this matter on March 3, 2011. 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 following facts, taken from the Complaint, are uncontested:
The Complainant is a world leader in economic and mid-scale hotels, and a major player in upscale and luxury hospitality services. The Complainant operates more than 4,000 hotels in 90 countries worldwide, and in 2009 employed more than 150,000 people; in Australia alone the Complainant operates 140 hotels, 24 of which are Novotel hotels. Novotel is one of the Complainant’s chains of hotels.
The Complainant owns the following international NOVOTEL trademark designating Australia, which is well-known in the hotel and restaurant industries:
NOVOTEL & DESIGN, International Trademark No. 875,041, registered on December 9, 2005 and covering services in Class 43;
The Complainant also owns and uses the domain name , registered on April 10, 1997.
The disputed domain name was registered on July 20, 2010. 5. Parties’ Contentions A. Complainant
In addition to the above mentioned the Complainant states that the Novotel Hotels mainly communicates online via its website “www.m” in order to allow the Internet users a quick and easy finding and booking of its hotels.
The Complainant sent a cease-and-desist letter to Respondent requesting amicably the transfer of the disputed domain name , based on the Complainant’s trademark rights. The Respondent replied by refusing to transfer the disputed domain name and stating that the disputed domain name was legally owned by its company, Network over Voice of Telephone, and that its company was not in the hotel business and had no intention of competing with Complainant and that its company had spent a great amount of human and material capitals on the disputed domain name. The Complainant replied to the Respondent, renewing its request that Respondent transfer the disputed domain name. The Complainant did not receive a response to the second request.
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are present in this case. In particular, the Complainant claims that:
a) The disputed domain name is confusingly similar to the above-referenced trademark in which the Complainant has rights.
The Complainant claims that the “.co” portion of the domain name must be ignored when assessing the identity of a mark or domain name and that confusing similarity is determined by comparing the mark at issue with the domain name. It also claims that the incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to a registered mark.
The Complainant asserts that by registering the disputed domain name the Respondent has created a likelihood of confusion, since Internet users may think that the disputed domain name is related to the Complainant’s services. Consequently the disputed domain name is confusingly similar to the NOVOTEL trademark.
b) The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant asserts that the Respondent is not affiliated with the Complainant in any way. It has not authorized the Respondent to use nor register its trademarks or to seek the registration of any domain names incorporating said trademarks.
The Complainant also asserts that the Respondent makes no legitimate noncommercial or fair use of the domain name, since the disputed domain name initially was directed to a GoD parking page containing pay-per-click links related to hotel industry. After receiving the cease-and-desist letter, the disputed domain name was directed to an inactive webpage that mentions the name Network over Voice of Telephone which can be abbreviated as NOVOTEL. The Complainant contends that this name was contrived by the Respondent in an attempt to legitimize the disputed domain name. The Complainant asserts that a Google search failed to produce any information on Network over Voice of Telephone.
Lastly, the Complainant asserts that the Respondent did not rebut the allegations set forth by the Complainant and has not provided the Panel with any explanation as to whether there are indeed legitimate reasons for its choice of the disputed domain name.
Therefore, the Respondent has no rights and legitimate interests in the disputed domain name.
c) The disputed domain name was registered and used in bad faith.
The Complainant claims that it would be difficult to believe that the Respondent was not aware of the existence of the Complainant at the time it registered the domain name given the prominence of the Novotel hotels in Australia and the world wide fame of the NOVOTEL mark.
The Complainant also claims that in light of the use of this disputed domain name and the lack of response from the Respondent, the Respondent most likely registered the domain name in bad faith and was perfectly aware that it was infringing the Complainant’s rights. Bad faith was furthered evidenced by the use of the disputed domain name to divert Internet users to a pay-per-click site related to the hotel industry. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with Paragraph 4(a) of the Policy, the Complainant must prove that each of the three elements is present:
(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
This first element requires that the Complainant demonstrates that (i) it has trademark rights and (ii) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
(i) The Panel finds that the Complainant has established that it is the owner of the registered trademark NOVOTEL based on the uncontested allegations provided by the Complainant.
(ii) The disputed domain name consists of the Complainant’s registered trademark NOVOTEL in its entirety.
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests
The second element requires the Complainant to prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
By the terms used in paragraph 4(a) of the Policy it is clear that the overall burden of proof is on the Complainant, however the Policy provides the Respondent with means to demonstrate its rights to and legitimate interests in the domain name in responding to the Complaint. If the Complainant has established a prima facie case under paragraph 4(a)(ii) of the Policy, the burden of production is shifted to the Respondent to prove the contrary.
The Complainant states that the disputed domain name initially directed to a GoD parking page and later directed to an inactive website. The Complainant asserts that the Respondent is not affiliated with the Complainant in any way nor has it authorized the Respondent to use or register its trademarks or to seek the registration of any domain names incorporating said trademarks. The Complainant finally claims that the Respondent makes no legitimate noncommercial or fair use of the disputed domain name and therefore has no rights or legitimate interests in the domain name.
The Respondent has not provided a response to the allegations set forth by the Complainant, though given the opportunity.
There is no evidence in the case file demonstrating that the Respondent might have rights or legitimate interests in the disputed domain name. The Panel does not consider Respondent’s response to the Complainant’s cease and deist letter as credible evidence that the Respondent might have rights or legitimate interests in the disputed domain name.
In the absence of a Response the Panel is satisfied that the Complainant has satisfied the second element of paragraph 4(a) of the Policy and has established that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
This third element requires that the Complainant demonstrate that the disputed domain name has been registered in bad faith and is being used in bad faith.
Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances which if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
The disputed domain name is composed of the Complainant’s registered trademark in its entirety.
The Complainant states that 24 Novotel hotels exist in Australia. The Respondent resides in Australia. Therefore one can reasonably conclude that the Respondent must have had knowledge of the existence of the Novotel hotels and of the Complainant’s well-known trademark, demonstrating bad faith registration.
Moreover, the Complainant’s trademark was known to the Respondent since the day the Complainant’s counsel contacted the Respondent and informed it of the Complainant’s prior rights. Therefore, all use after such notification suggests use of the disputed domain name in bad faith. Indeed, the Complainant sent a cease-and-desist letter to the Respondent requesting the transfer of the disputed domain name and the cease of use of the trademark. The Respondent continues to use the trademark of the Complainant, in circumstances in which the Complainant has clearly stated that it has never given the Respondent authorization to use such trademark. Moreover, the disputed domain name initially diverted Internet users to a GoD parking page containing pay-per-click links related to the hotel industry. This conduct of Respondent further supports a finding of bad faith on its behalf.
Therefore, in accordance with paragraph 4(b)(iii) of the Policy, the above findings lead to the conclusion that the disputed domain name has been registered and used in bad faith. 7. Decision
For all 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.
William L. LaFuze
Sole Panelist
Dated: March 17, 2011
Full & Egal Universal Law Academy