WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accor SA v. Wang Yue Mei
Case No. D2019-0849
1. The Parties
The Complainant is Accor SA of France, represented by Dreyfus & associés, France.
The Respondent is Wang Yue Mei of China.
2. The Domain Name and Registrar
The disputed domain name <pullmanshanghai.com> is 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 April 15, 2019. On April 15, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 17, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 25, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint in English on April 30, 2019.
On April 25, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On the same day, 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 together with the amended 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, in English and Chinese, of the Complaint, and the proceedings commenced on May 2, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 22, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 24, 2019.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on June 4, 2019. 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 multinational hotel group headquartered in France. The Complainant operates over 4,800 hotels in 100 countries worldwide, including in China. In Shanghai in particular, the Complainant operates three PULLMAN-branded hotels.
The Complainant owns a portfolio of trademark registrations for PULLMAN, for instance Chinese trademark registration number 4734292 registered on February 7, 2009 and International trademark registration number 502625 registered on May 5, 1986, indicating inter alia Germany and Switzerland. The Complainant also owns a portfolio of official domain names, such as <pullmanhotels.com> registered on March 21, 1999 and <pullmanhotels.cn> registered on December 18, 2007. Incidentally, the relevant registered trademarks adduced by the Complainant were successfully registered prior to the registration date of the disputed domain name, which was registered on March 13, 2012. The Complainant submits evidence that the disputed domain name directs to an active website, which contains information on, and images of the Complainant’s hotel located in the Jing An District of Shanghai, China, and offers online booking services.
5. Parties’ Contentions
The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for PULLMAN, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith.
The Complainant claims that its trademarks are famous and well regarded in the hospitality industry, and provides evidence of its marketing materials as well as prior domain name decisions which state that the Complainant and its PULLMAN trademark are well known. Moreover, the Complainant provides evidence that the disputed domain name is linked to an active website. The Complainant contends that the website linked to the disputed domain name purports to be the Complainant’s website for its Shanghai Jing An District hotel, unlawfully using the Complainant’s trademarks and copyrighted works and offering unauthorized booking services. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes use in bad faith.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Preliminary Issue: Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The Complainant states that it could not locate the Registration Agreement, and that it therefore does not know in which language the Registration Agreement was drafted. Nevertheless, the Complainant has filed both the Complaint and the amended Complaint in English, and requests that the language of the proceeding be English.
The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English; the lack of comment on the language of the proceeding and the lack of response of the Respondent (the Panel notes that the Respondent had the opportunity to respond in either English or Chinese); the fact that the website linked to the disputed domain name is fully available in both English and Chinese, from which the Panel deducts that the Respondent is able to understand and communicate in English; and the fact that Chinese as the language of the proceeding could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of the proceeding shall be English.
6.2. Discussion and Findings on the Merits
The Policy requires the Complainant to prove three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service 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.
Based on the evidence and arguments submitted, the Panel’s findings are as follows:
A. Identical or Confusingly Similar
The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in the sign PULLMAN based on its use and registration of the same as a trademark, incidentally commencing several years prior to the registration of the disputed domain name.
Moreover, as to confusing similarity of the disputed domain name with the Complainant’s trademarks, the disputed domain name consists of the combination of two elements, which are the Complainant’s PULLMAN trademark and the geographical location “Shanghai”. According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.7, “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing” (see also Wal-Mart Stores, Inc. v. Richard McLeod d/b/a For Sale, WIPO Case No. D2000-0662). The Panel concludes that the disputed domain name contains the entirety of the Complainant’s trademark, as its sole distinctive and dominant feature. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s trademarks, and the Complainant has satisfied the requirements for the first element under the Policy.
B. Rights or Legitimate Interests
The Complainant has demonstrated that the Respondent is not an authorized reseller, service provider, licensee or distributor, and is not making legitimate noncommercial use or fair use of the Complainant’s trademarks. Also based on the Panel’s findings below, the Panel therefore considers that none of the circumstances of legitimate interests envisaged by paragraph 4(c) of the Policy apply. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements for the second element under the Policy.
C. Registered and Used in Bad Faith
Given the reputation and fame of the Complainant’s trademarks, the registration of the disputed domain name, which incorporates such trademarks in their entirety, is clearly intended to mislead and divert consumers to the disputed domain name. Even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned, and owns, trademarks in PULLMAN and uses these marks extensively, including in the Respondent’s home jurisdiction China. This finding is reinforced by the fact that the Complainant operates one of its PULLMAN-branded hotels in Shanghai, and that the registration of the disputed domain name, including the word “shanghai”, is clearly intended to divert customers of the Complainant’s hotels in Shanghai to the disputed domain name. In the Panel’s view, this clearly indicates the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith.
As to use of the disputed domain name in bad faith, the Complainant provides evidence that the website linked to the disputed domain name purports to be operated by the Complainant, referring to the address and telephone number of the Complainant’s hotel in the Jing An District of Shanghai, displaying copyright protected images owned by the Complainant and offering unauthorized booking services. Having regard to these elements of bad faith in concrete use of the disputed domain name, as well as to the fact that the only distinctive element in the disputed domain name is the Complainant’s trademark and the high degree of distinctiveness and reputation of the Complainant’s trademark (including in China), the Panel rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith.
Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under the Policy.
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 <pullmanshanghai.com> be transferred to the Complainant.
Deanna Wong Wai Man
Date: June 16, 2019