WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Booking.com B.V. v. 尹军 (Yin Jun)
Case No. D2021-4374
1. The Parties
The Complainant is Booking.com B.V., Netherlands, internally represented.
The Respondent is 尹军 (Yin Jun), China.
2. The Domain Name and Registrar
The disputed domain name <httpsbooking.com> is registered with 22net, Inc. (the “Registrar”).
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 24, 2021. On December 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 28, 2021, 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 December 29, 2021 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 January 14, 2022.
On December 29, 2021, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on January 14, 2022. 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 proceeding commenced on January 31, 2022. In accordance with the Rules, paragraph 5, the due date for Response was February 20, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 21, 2022.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 23, 2022. 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 company incorporated in the Netherlands and a leading global provider of online hotel and accommodation booking services, since 1996, under the trade mark BOOKING.COM (the “Trade Mark”).
The Complainant is the owner of registrations for the Trade Mark in numerous jurisdictions worldwide, including International registration No. 1104711, with a registration date of December 15, 2011.
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered on April 28, 2015.
D. Use of the Disputed Domain Name
The disputed domain name is resolved to an English language pay-per-click (“PPC”) website providing sponsored links to travel and accommodation related websites, including websites relating to the Complainant’s competitors (the “Website”).
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith.
The Complainant further contends that the Respondent has registered many other domain names incorporating the third party trade marks, including <facebook.st>, <alibaba.com.pe>, and <googlegroupon.com>.
The Complainant further contends that the Respondent has also been involved in several UDRP cases, for example, Government Employees Insurance Company (“GEICO”) v. 尹军 (yinjun), WIPO Case No. D2020-3332 and Accenture Global Services Limited v. yinjun (尹军), WIPO Case No. D2020-1312. These cases have been decided against the Respondent.
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 for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), 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 Complainant has requested that the language of the proceeding be English, for several reasons, including the fact that the Website is an English language website.
The Respondent did not file a response and did not file any submissions with respect to the language of the proceeding.
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 Respondent is conversant in the English language. The Panel is also mindful of the need to ensure that 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 Respondent 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. Substantive Elements of the Policy
The Complainant 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 Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) prefaced by the term “https” (Hypertext Transfer Protocol Secure) – the widely used secure Internet communication protocol.
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 name is confusingly similar to the Trade Mark and that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
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 Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption (see WIPO Overview 3.0, section 2.1).
The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been resolved to the Website, containing PPC links to websites relating to travel and accommodation services, including those of the Complainant’s competitors, for commercial gain.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the evidence of the Respondent’s use of the Website 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 Panel also finds the use of “https” in the disputed domain name provides further evidence in support of a finding that the Respondent has directly targeted the Complainant’s Trade Mark in registering and using the disputed domain name, to give the illusion of a legitimate domain name and to try to hijack Internet traffic that is intended for the Complainant.
Moreover, based on the case file, the Panel also notes that the Respondent has registered other domain names incorporating the third party trade marks and has been involved in several cases filed under the Policy, which may be further evidence of bad faith.
For all the foregoing reasons, the Panel concludes 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 <httpsbooking.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: March 9, 2022