WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Starwood Hotels & Resorts Worldwide, Inc., Westin Hotel Management, L.P., Sheraton International IP, LLC, Sheraton LLC v. Liu Jin Liang
Case No. D2015-1403
1. The Parties
The Complainant is Starwood Hotels & Resorts Worldwide, Inc., Westin Hotel Management, L.P., Sheraton International IP, LLC and Sheraton LLC of Stamford, Connecticut, United States of America ("USA"), represented by Fross Zelnick Lehrman & Zissu, PC, United States of America.
The Respondent is Liu Jin Liang of Huhehaote (Hohhot), Inner Mongolian Autonomous Region, China.
2. The Domain Names and Registrar
The disputed domain names <sheraton.wang> and <westin.wang> are registered with Chengdu West Dimension Digital Technology Co., Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 7, 2015. On August 10, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 11, 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 August 12, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On August 12, 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 in both Chinese and English, and the proceedings commenced on August 20, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 9, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 11, 2015.
The Center appointed Francine Tan as the sole panelist in this matter on October 2, 2015. 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, Starwood Hotels & Resorts Worldwide, Inc., is a hotel and leisure company incorporated under the laws of Maryland, USA. The second, third and fourth Complainants, Westin Hotel Management, L.P., Sheraton International IP, LLC and Sheraton LLC are affiliated entities. The Complainants own the trade marks SHERATON and WESTIN. These marks are registered in relation to hotels and leisure-related goods and services, including in China where the Respondent is located. The first United States registration for the WESTIN trade mark was obtained in 1985 and that for SHERATON, in 1959. The Complainants assert that the SHERATON and WESTIN trade marks are well known across the world. The marks were also registered with the Trademark Clearinghouse ("TMCH").
The Complainants are one of the world's leading hotels and/or leisure companies in the world, with over 1,100 properties in approximately 100 countries. WESTIN hotels were introduced in1981, and are located in over 30 countries worldwide. The SHERATON trade mark has been used in connection with goods and services in the hotel and leisure industry for more than 80 years.
The Complainants' domain name registrations include <westin.com>, <westinhotels.com>, <sheraton.com> and <sheratonhotels.com>.
The disputed domain names were registered by the Respondent on September 3, 2014. The disputed domain names do not resolve to any active website.
A letter was sent to the Respondent by the Complainants' external counsel on April 28, 2015, notifying the Respondent of the Complainants' rights in the WESTIN and SHERATON trade marks. It requested that the Respondent agree to voluntarily transfer the disputed domain names to the first Complainant. The Respondent did not reply to the letter.
5. Parties' Contentions
The Complainants assert that the disputed domain names are identical and/or confusingly similar to the Complainants' marks, SHERATON and WESTIN, in which they have rights. The ".wang" generic Top-Level Domain (gTLD) cannot be taken into consideration when judging confusing similarity. The disputed domain names each incorporates, without alteration, the Complainants' said registered trade marks.
The Complainants assert, secondly, that the Respondent has no rights or legitimate interests in the disputed domain names. There is no evidence that the Respondent has ever been known by the disputed domain names and neither does he have any connection or affiliation with the Complainants. He has not been authorized to use the Complainants' WESTIN and SHERATON trade marks. The Respondent should in fact have been well aware of the Complainants' rights in the said trade mark as he would have received the notice thereof from the TMCH when he registered the disputed domain names. Given that the adoption and extensive use of the WESTIN and SHERATON trade marks by the Complainants predate the Respondent's registration of the disputed domain names, the burden is on the Respondent to establish his rights or legitimate interests in the disputed domain names.
Thirdly, the Respondent registered and used the disputed domain names in bad faith. The Respondent's failure to respond to the Complainants' letter of April 28, 2015 is evidence of bad faith. Given the well-known nature of the WESTIN and SHERATON trade marks, it is inconceivable that the Respondent was unaware of these marks when he registered the disputed domain names. The Respondent's passive holding of the disputed domain names is itself bad faith use.
The Respondent did not reply to the Complainants' contentions.
6. Discussion and Findings
A. Language of the Proceeding
Paragraph 11 of the Rules provides that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the relevant domain name, the language of the 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. According to the records, the language of the registration agreement in relation to the disputed domain names is Chinese.
In response to the Center's email of August 12, 2015 regarding the language of the proceeding, the Complainants confirmed their request that English be the language of the proceeding. The Complainants stated that the circumstances warrant that the proceeding be conducted in the English language. The Complainants submit that the very nature of the gTLD ".wang" is that it is intended for use by Chinese registrants who are also fluent in a Latinate language or are comfortable using Latin characters.
The Panel is mindful of its mandate under paragraph 10(b) and (c) of the Rules to ensure that the proceeding takes place with due expedition and that the parties are treated fairly and given a fair opportunity to present their case. The Panel determines that English should be the language of the proceeding in this case. As pointed out by the Complainants, the disputed domain names comprises Latin characters and the Complainants have set out a prima facie case from which one may presume that the Respondent is sufficiently familiar with the English language. The presumption is of course rebuttable. The Panel notes that all the communications from the Center to the parties were transmitted in both Chinese and English. The Respondent was given the opportunity to present his case in this proceeding and to respond on the issue of the language of the proceeding but did not do so. To require the Complainants to translate the Complaint and supporting evidence into Chinese would unduly delay the proceeding.
Having considered all the circumstances of this case, the Panel determines that it is appropriate that English is the language of the proceeding.
B. Identical or Confusingly Similar
The Panel accepts not only that the Complainants have rights in the SHERATON and WESTIN trade marks, but also that these marks are widely known. Each of these marks has been incorporated in its entirety in the respective disputed domain names. Consequently, the Panel has little difficulty in finding that the disputed domain names are identical to the trade marks SHERATON and WESTIN, respectively, in which the Complainants have rights.
The Panel concludes that the first requirement of the Policy, paragraph 4(a), has been met.
C. Rights or Legitimate Interests
The Respondent provided no response or arguments in response to the Complainants' assertions. The Panel is persuaded that the Complainants have established not only a prima facie case, but in fact a convincing one, that the Respondent has no rights or legitimate interests in the disputed domain names. Given the fame and extensive use of the SHERATON and WESTIN trade marks worldwide, the Panel considers it highly improbable that the Respondent would be able to show in any convincing way that he has rights or legitimate interests in the disputed domain names. The fact that the disputed domain names specifically incorporate two widely known marks of the Complainants casts a very doubtful light on the legitimacy in the Respondent's domain name registrations.
The Panel concludes that the second requirement of the Policy, paragraph 4(a), has been met.
D. Registered and Used in Bad Faith
Notwithstanding the passive use of the disputed domain names by the Respondent, the Panel finds that the disputed domain names have been registered and used in bad faith, in view of how widely known the SHERATON and WESTIN trade marks are (see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003) and in view of the fact that these marks were registered with the TMCH. The Panel also takes note that the Respondent appeared to have provided false contact details. The Panel does not find it conceivable that there could be any plausible actual or contemplated good faith use of the disputed domain names that would not be illegitimate.
The Panel concludes that the third requirement of the Policy, paragraph 4(a), has been met.
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 <sheraton.wang> and <westin.wang> be transferred to the first Complainant, namely Starwood Hotels & Resorts Worldwide, Inc.
Date: October 16, 2015