WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor SA, SoLuxury HMC, Swissôtel Management GmbH v. Guo Qiang Zhou, Zhou Guo Qiang, Li Mei Zeng, Zeng Li Mei
Case No. D2018-0678
1. The Parties
The Complainants are Accor SA ("the 1st Complainant") of Issy-Les-Moulineaux, France, SoLuxury HMC ("the 2nd Complainant") of Issy-Les-Moulineaux, France, and Swissôtel Management GmbH ("the 3rd Complainant") of Kloten, Switzerland, represented by Dreyfus & associés, France.
The Respondents are Guo Qiang Zhou, Zhou Guo Qiang of Guangzhou, Guangdong, China, and Li Mei Zeng, Zeng Li Mei of Xi'an, Shanxi, China.
2. The Domain Names and Registrars
The disputed domain names <pullmanzhangjiajiehotel.com>, <sofiteljinansilverplaza.com>, <sofitelshanghai.com>, <swissotelhotelfoshan.com>, <swissotelkunshanhotel.com>, and <swissxiamenhotel.com> are registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on March 27, 2018. On March 27, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On March 28, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondents are listed as the registrant and providing the contact details. On April 5, 2018, the Canter sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant submitted a request that English be the language of the proceeding on April 6, 2018. The Respondents 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 Respondents in English and Chinese of the Complaint, and the proceeding commenced on April 17, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 7, 2018. The Respondents did not submit any response. Accordingly, the Center notified the Respondents' default on May 8, 2018.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 23, 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 1st and 2nd Complainants are companies incorporated in France. The 3rd Complainant is a company incorporated in Switzerland.
The 2nd and 3rd Complainants are wholly-owned subsidiaries of the 1st Complainant.
The 1st Complainant is the owner of registrations for the trade mark PULLMAN in jurisdictions worldwide, including Chinese registration No. 4734292, with a registration date of February 7, 2009.
The 2nd Complainant is the owner of registrations for the trade mark SOFITEL in jurisdictions worldwide, including International registration No. 863332 designating China, with a registration date of August 26, 2005.
The 3rd Complainant is the owner of registrations for the trade mark SWISSOTEL in jurisdictions worldwide, including European Union registration No. 002285567, with a registration date of November 8, 2002.
The Complainants have been using their trade marks PULLMAN, SOFITEL and SWISSOTEL (the "Trade Marks") for many years in respect of their hotels operated worldwide, including, in particular the following hotels in China:
(i) The Hotel Pullman Zhangjiajie;
(ii) The Sofitel Shanghai Sheshan Oriental Hotel, the Sofitel Shanghai Hongqiao Hotel, and the Sofitel Shanghai Hyland Hotel; and
(iii) The Swissotel Foshan and the Swissotel Kunshan.
The Respondents are individuals apparently with addresses in China.
C. The Disputed Domain Name
The disputed domain name <pullmanzhangjiajiehotel.com> was registered on July 17, 2014. The disputed domain name <sofiteljinansilverplaza.com> was registered on July 14, 2014. The disputed domain name <sofitelshanghai.com> was registered on August 22, 2014. The disputed domain name <swissotelhotelfoshan.com> was registered on April 2, 2013. The disputed domain name <swissotelkunshanhotel.com> was registered on July 20, 2014. The disputed domain name <swissxiamenhotel.com> was registered on July 15, 2014.
D. The Websites at the Disputed Domain Names
The disputed domain names have been used in respect of websites which have the appearance of the Complainants' official websites for the Complainants' hotels: the websites contain the Trade Marks, feature photographs of the Complainants' hotels, and offer apparently fake online hotel booking services.
5. Parties' Contentions
The Complainants contend that the disputed domain names are identical or confusingly similar to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names were registered and are being used in bad faith.
The Respondents did not reply to the Complainants' contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreements for the disputed domain names is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainants have requested that the language of the proceeding be English, for several reasons, including in particular the fact the contents of the Websites are in both English and Chinese.
The Respondents, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a response.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties' ability to understand and use the proposed language, time and costs.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondents are conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondents would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2 Consolidation of Respondents
Previous UDRP decisions suggest that consolidation of multiple respondents may be appropriate, under paragraphs 3(c) and 10(e) of the Rules, where the particular circumstances of a given case indicate that common control is being exercised over the disputed domain names or the websites to which the disputed domain names resolve, where consolidation would be fair and equitable to all parties, and where procedural efficiency supports consolidation (see section 4.11.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")).
In the present proceeding, the Complainants contend as follows:
(i) Both Respondents share the same email address;
(ii) The composition of the disputed domain names is similar;
(iii) The Websites are similar; and
(iv) The disputed domain names have been registered with the same Registrar.
In all the circumstances, the Panel concludes sufficient evidence has been adduced to enable the conclusion to be drawn that common control is being exercised over the disputed domain names.
In all the circumstances, the Panel determines, under paragraph 10(e) of the Rules, that consolidation of the Respondents is procedurally efficient and equitable to all the Parties, is consistent with the Policy and Rules, and comports with prior relevant UDRP decisions in respect of this issue.
6.3. Substantive Elements of the Policy
The Complainants must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainants have rights in the corresponding Trade Marks acquired through use and registration.
The disputed domain names each incorporate the entirety of one of the Trade Marks (see WIPO Overview 3.0, section 1.7) together with the words "hotel", "silver", "plaza", "zhangjiajie", "jinan", "shanghai", "foshan", "kunshan" and/or "xiamen".
Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8).
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Marks.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(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 trade mark 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 trade mark or service mark at issue.
The Complainants have not authorised, licensed, or permitted the Respondents to register or use the disputed domain names or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondents have no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondents to produce evidence to rebut this presumption.
The Respondents have failed to show that they have acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names have been used in respect of the Websites, which make unauthorised use of the Trade Marks and have been set up to imitate the Complainants' official websites, in order to fraudulently induce Internet users to make hotel bookings using the fake online booking services on the Websites.
There has been no evidence adduced to show that the Respondents have been commonly known by the disputed domain names; and there has been no evidence adduced to show that the Respondents are making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that the Respondents have failed to produce any evidence to rebut the Complainants' prima facie case that the Respondents lack rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad Faith
In light of the evidence of the Respondents' use of the Websites in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy. The evidence on the record indicates, accordingly, that the Respondents sought to take advantage of the Trade Marks when registering the disputed domain names.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are 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 <pullmanzhangjiajiehotel.com> be transferred to the 1st Complainant; the disputed domain names <sofiteljinansilverplaza.com> and <sofitelshanghai.com> be transferred to the 2nd Complainant; and the disputed domain names <swissotelhotelfoshan.com>, <swissotelkunshanhotel.com> and <swissxiamenhotel.com> be transferred to the 3rd Complainant.
Sebastian M.W. Hughes
Dated: June 6, 2018