WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor SA v. Jianfeng Wu, www.Juming.com
Case No. D2018-0127
1. The Parties
Complainant is Accor SA of Issy-Les-Moulineaux, France, represented by Dreyfus & Associés, France (hereinafter "Complainant").
Respondent is Jianfeng Wu, www.Juming.com of Heifei, China (hereinafter "Respondent").
2. The Domain Name and Registrar
The disputed domain name <novotel-beijing-sanyuan.com> is registered with DomainCreek LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 22, 2018. On January 22, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 22, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 13, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 14, 2018.
The Center appointed M. Scott Donahey as the sole panelist in this matter on February 21, 2018. 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
For the last 45 years Complainant has operated more than 4,200 hotels in 95 countries around the world under 20 brands, including the brand "Novotel". Complaint, Annex 3. Complainant operates 455 hotels under the "Novotel" brand, 18 of which are operated in China. One of the Novotel branded hotels in China is operated under the name "Novotel Beijing Sanyuan", which is located 15 minutes from the Beijing Capital Airport. Complaint, Annex 3.
Complainant has a registered International Trademark, registered on July 26, 1989 for the mark NOVOTEL. Complainant is also the registered owner of the Chinese trademark NOVOTEL, which registration issued on March 21, 2013. Complaint, Annex 5.
Complainant has also registered the domain name <novotel.com>, which it originally registered on April 10, 1997. Complaint, Annex 6.
The disputed domain name was originally registered on August 13, 2017. Following the sending by Complainant of a cease and desist letter and follow-up communications to the original registrant, the registration lapsed. It was then registered by a second party, who subsequently transferred the registration to Respondent on December 25, 2017. The disputed domain name resolves to an inactive website.
5. Parties' Contentions
Complainant alleges that the disputed domain name is confusingly similar to Complainant's NOVOTEL trademark and service mark in that it consists of the NOVOTEL mark joined by hyphens to the words "beijing" and "sanyuan". Adding further to the confusion, Complainant operates a hotel in China which is only 15 minutes from Beijing Capital Airport, whose name is "Novotel Beijing Sanyuan". Thus, the disputed domain name is virtually identical to the name under which Complainant's Beijing Capital Airport hotel is operated.
Complainant further asserts that as it has not authorized Respondent to use its NOVOTEL mark in any respect, and therefore Respondent has no rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant alleges that the disputed domain name has been registered and is being used in bad faith, because, among other reasons, there is no conceivable use of the disputed domain name which would not confuse a user that the use being made was by Complainant.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:
"A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant has established rights in the NOVOTEL trademark through its registration and use. The disputed domain name consists of Complainant's NOVOTEL mark together with the words "beijing" and "sanyuan," the three words separated by two hyphens. Complainant's trademark is clearly recognizable in the disputed domain name, and the three words in sequence correspond to the name of Complainant's Beijing Capital Airport hotel, the Novotel Beijing Sanyuan. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 2.1.
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. None of the circumstances set out in paragraph 4(c) of the Policy, nor any other circumstances that would give rise to rights or legitimate interests in the disputed domain name, appear to apply. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
The disputed domain name was acquired by Respondent, a resident of China, who has not used the disputed domain name to resolve to an active website. The Panel finds that there is no legitimate use of the disputed domain name of which a reasonable person could conceive that would not be a use in bad faith. The disputed domain name both incorporates Complainant's mark, registered both internationally and under the laws of China, and consists of the name of Complainant's Beijing Capital Airport hotel accompanied by hyphens, and is being passively held by Respondent. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith.
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, <novotel-beijing-sanyuan.com>, be transferred to Complainant.
M. Scott Donahey
Date: February 23, 2018