WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ACCOR v. Renfengzhen, Deqingyisuiyanyulvyoukaifayouxiangongsi
Case No. D2018-1424
1. The Parties
The Complainant is ACCOR of Issy-Les-Moulineaux, France, represented by Dreyfus & associés, France.
The Respondent is Renfengzhen, Deqingyisuiyanyulvyoukaifayouxiangongsi of Huzhou, China.
2. The Domain Name and Registrar
The disputed domain name <novotel-deqing.com> is registered with Xiamen ChinaSource Internet Service Co., Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on June 27, 2018. On June 27, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 11, 2018, 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 July 11, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On July 16, 2018, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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, and the proceedings commenced on July 19, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 8, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 9, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on August 22, 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 is a French multinational hotel group that operates more than 4,000 hotels around the world. One of its brands is "Novotel". The Complainant owns trademark registrations for NOVOTEL in China including registration no. 15930534, registered on August 28, 2016.
The Respondent appears to be a company based in Huzhou, China.
The disputed domain name was registered on March 9, 2018 and resolves to an inactive webpage. The disputed domain name appears, however, to have been configured to allow for email traffic. The contact email is given as "[…]@novotel-deqing.com".
5. Parties' Contentions
The Complainant's contentions are as follows:
Identical or confusingly similar
The Complainant contends that the disputed domain name <novotel-deqing.com> is confusingly similar to the Complainant's registered trademark NOVOTEL as the disputed domain name incorporates the Complainant's NOVOTEL mark. The inclusion of a geographic descriptor "deqing" and the addition of the generic Top-Level Domain ("gTLD") do not avoid the finding of confusing similarity.
No rights or legitimate interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any license or trademark registration for NOVOTEL. It, therefore, has no rights or legitimate interests in the disputed domain name.
The Domain name was registered and is being used in bad faith
Before acquiring the disputed domain name, it is highly likely that the Respondent knew of the Complainant's rights in the NOVOTEL mark because of its worldwide reputation.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of the Proceeding
The language of the Registration Agreement is in Chinese. Paragraph 11(a) of the Rules provides that:
"Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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."
The Complainant requested the language of the proceeding to be English on the grounds that it is based in France and does not understand Chinese and that it would be expensive for the Complainant to translate the Complaint into Chinese. Further, English is an international business language.
The Respondent did not respond to this request.
The Center made a preliminary determination to:
(1) accept the Complaint as filed in English;
(2) accept a Response in either English or Chinese;
(3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel.
The Respondent did not respond to the Center's preliminary determination. This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of the proceeding "should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint".
Further, translating the Complaint would cause unnecessary delay in this matter.
These factors lead the Panel to determine to follow the Center's preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
6.2 Substantive Issues
A. Identical or Confusingly Similar
The disputed domain name <novotel-deqing.com> is confusingly similar to the Complainant's NOVOTEL trademark.
It incorporates the Complainant's registered trademark NOVOTEL in its entirety together with the generic geographical designation "deqing". According to previous UDRP decisions, the "addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element." (See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")).
The first element of paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
"While the overall burden of proof in UDRP proceedings is on the complainant, 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."
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a response by the Respondent to the Complainant's contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant's trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name. Moreover, the Panel notes that the disputed domain name effectively impersonates or suggests sponsorship or endorsement by the Complainant (WIPO Overview 3.0, section 2.5.1).
The second element of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name <novotel-deqing.com> was registered in bad faith and is being used in bad faith.
The fact the disputed domain name does not resolve to an active page does not preclude a finding that it has been used in bad faith. It is well established that passive use or non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding. (WIPO Overview 3.0, section 3.3). In the circumstances of this case, the Panel finds that the disputed domain name is being used in bad faith.
The third part of paragraph 4(a) of the Policy is therefore satisfied.
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-deqing.com> be transferred to the Complainant.
Date: 10 September 2018