WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fairmont Hotel Management L.P. v. Sin Young Deok
Case No. D2018-0616
1. The Parties
The Complainant is Fairmont Hotel Management L.P. of National Harbor, Maryland, United States of America ("United States"), represented by Fross Zelnick Lehrman & Zissu, P.C., United States.
The Respondent is Sin Young Deok of Gyeonggi, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <fairmontseoul.com> is registered with Gabia, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 20, 2018. On March 21, 2018, the Center transmitted to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2018, the Registrar transmitted to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On April 5, 2018, the Center notified the Parties, in both English and Korean, that the Complaint was submitted in English, and that according to the Registrar, the language of the Registration Agreement is Korean. In the same notification, the Center instructed the Complainant to provide, by April 8, 2018:
"1) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; or
2) submit the Complaint translated into Korean; or
3) submit a request for English to be the language of the administrative proceedings…."
To the Respondent, the Center stated that "if the Respondent is intending to participate in these proceedings, and/or has any comments on the Complainant's submission replying to this notification, the Respondent is requested to submit these to the Center by April 10, 2018." The Center also advised the Respondent:
"Specifically in the case of the Complainant submitting (or indicating that it will submit) a request for the language of proceedings to be English, and the Respondent objects to such request, the Respondent is invited to indicate that objection for the record, and to submit any arguments/supporting materials … as to why the proceedings should not be conducted in English.
Please note that if we do not hear from you by [April 10, 2018], we will proceed on the basis that you have no objection to the Complainant's request that English be the language of proceedings."
On April 5, 2018, the Complainant transmitted to the Center its request that the proceeding be conducted in the English language, reiterating its statements in the Complaint. The Respondent did not reply.
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, in both English and Korean, formally notified the Respondent of the Complaint, and the proceeding commenced on April 13, 2018. In accordance with the Rules, paragraph 5, the due date for the Response was May 3, 2018. The Respondent did not submit any response. Accordingly, on May 4, 2018, the Center notified the Respondent's default.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on May 14, 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
The Complainant offers hotel services and related goods throughout the world using the mark, FAIRMONT. The Complainant is the owner of multiple registrations of the FAIRMONT mark in several countries, including the United States (registered on April 23, 1974 and April 30, 1974) and the Republic of Korea (on August 4, 1992).
The Respondent registered the disputed domain name <fairmontseoul.com> on January 15, 2017.
5. Parties' Contentions
The Complainant contends principally that: (i) the disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights; (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. In addition, the Complaint states:
"Complainant and its predecessors in interest have used the FAIRMONT trademark in the United States since 1907 …."
"Over the years, Complainant and its related entities have operated FAIRMONT hotels internationally and have received numerous distinguished awards and recognitions."
"[T]he FAIRMONT mark has become uniquely associated with Complainant and its services, and has attained considerable fame and widespread acclaim in the United States, South Korea, and throughout the world."
"Complainant's and related entities' FAIRMONT marks are one of the best-known hotel-related marks in the world and has been found to be famous or well-known around the world in several prior disputes."
The Respondent did not reply to the Complainant's contentions. Paragraphs 5(e) and 14(a) of the Rules allow the Panel to decide the dispute based on the Complaint. Under paragraph 14(b), the Panel may draw appropriate inferences from the Respondent's default.
6. Discussion and Findings
Initially, the Panel must address the language of the proceeding.
Paragraph 11(a) of the Rules provides that the language of the registration agreement is the language of the administrative proceeding, unless otherwise agreed by the parties or specified in the registration agreement. But the rule also states that the determination of the language is "subject to the authority of the Panel …, having regard to the circumstances of the administrative proceeding." Here, the language of the Registration Agreement is Korean. Nevertheless, the Complainant requests that English be the language of the proceeding.
After receiving the Complaint submitted in English, the Center notified the Parties, in both Korean and English, of the Center's procedural rules regarding the language of the proceeding. The Center informed the Respondent that it may object timely to a proceeding conducted in English. The Respondent did not respond to the Center's notification, and has defaulted. Under these circumstances, the Panel decides that English is the language of the proceeding.
On the merits, in order to prevail, the Complainant must satisfy each of the three elements of paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Panel determines that the disputed domain name <fairmontseoul.com> is identical or confusingly similar to FAIRMONT, a mark in which the Complainant has rights. The addition of a geographical term such as "seoul" does not defeat confusing similarity. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.8.
The first element is demonstrated.
B. Rights or Legitimate Interests
The Complainant states that it has not authorized the Respondent to use the Complainant's protected mark. The Complainant has met its initial burden of making a prima facie showing. The burden shifts to the Respondent to demonstrate any rights or legitimate interests in the disputed domain name. The Respondent has defaulted. The Panel is unable to ascertain any evidence that would demonstrate the Respondent's rights or legitimate interests in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is also demonstrated.
C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, the Complainant must show that the disputed domain name "has been registered and is being used in bad faith." The Policy's paragraph 4(b) provides a non-exhaustive list of circumstances that are "evidence of the registration and use of a domain name in bad faith".
Internet users who resort to the disputed domain name are taken to a website with content almost all in Korean. The site indicates that it is under construction ("홈페이지 준비중 입니다.") and asks visitors to wait ("잠시만 기다려 주세요."). The site also includes four links whose domain names include the Registrar's name.
Inactive use of a domain name does not prevent a finding of bad faith. WIPO Overview 3.0, section 3.3. Here, the Panel can only conclude that the bad faith element that the Policy requires is present. The Complainant's mark is well-known worldwide.
The third element is established.
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 <fairmontseoul.com> be transferred to the Complainant.
Date: May 28, 2018