The Complainant is Inter-Continental Hotels Corporation of Atlanta, Georgia, United States of America, represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America ("United States").
The Respondent is Hui Lian Yang/Yang Hui Lian of Zhongshan, Guangdong, China; a/k/a Jian Ren Zhou/Zhou Jian Ren of Shenzhen, Guangdong, China; a/k/a Jian Guo Liu/Liu Jian Guo of Chengdu, Sichuan, China.
The disputed domain names <intercontinentalchongqing.com>, <intercontinentalnanjing.com> and <intercontinentalshenzhenhotel.com> (the "Domain Names") are registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 23, 2014. On February 24, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On February 25, 2014, 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 February 26, 2014, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On February 26, 2014, the Complainant confirmed its request that English be the language of the proceeding. The Respondent 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(a) and 4(a), the Center formally notified the Respondent of the Complaint in both English and Chinese, and the proceedings commenced on March 5, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 25, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 26, 2014.
The Center appointed Linda Chang as the sole panelist in this matter on April 15, 2014. 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.
The Complainant is a member of InterContinental Hotels Group ("IHG"), a leading hotel company that owns, manages, leases or franchises, through various subsidiaries, more than 4,600 hotels in nearly 100 countries and territories around the world. InterContinental Hotels & Resorts is one of the hotel brands of IHG.
The Complainant is the owner of a number of INTERCONTINENTAL trademark registrations in China and the United States, including Chinese Trademark Registration No. 989822, and United States Trademark Registration No. 0890271, No. 2005852 and No. 3486561.
The Domain Name <intercontinentalchongqing.com> was registered on April 19, 2013, and <intercontinentalnanjing.com> and <intercontinentalshenzhenhotel.com> were registered on April 25, 2013. The Domain Names are respectively resolving to websites providing hotel reservation services for Intercontinental Hotel – Chongqing, InterContinental Hotel – Nanjing and InterContinental Hotel Shenzhen.
The Registrar confirmed that the language of the Registration Agreement of the Domain Names is Chinese. The Complainant filed its Complaint in English and requested for English to be the language of the proceedings for the following reasons:
(a) Each of the Domain Names contains Latin characters and an English-language trademark;
(b) The websites under the Domain Names are all in English.
The Panel notices the websites to which the Domain Names resolve have an English version and the content is displayed in English. The Panel further notices that the Respondent has been given a fair opportunity to object to the use of English as the language of the proceedings but did not do so.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceedings by taking into consideration all relevant circumstances, to ensure fairness of both parties in the language selection. The Panel views that using English as language of the proceedings would not be prejudicial to the Respondent in its ability to articulate the arguments for the case, while if the proceedings are to be conducted in Chinese, additional expense and delay would likely be incurred if the Complaint is requested to be translated into Chinese.
The Panel thus decides that the language of the proceedings shall be English and the decision will be rendered in English.
Paragraph 4(f) of the Policy provides that "[i]n the event of multiple disputes between [a respondent] and a complainant, either [the respondent] or the complainant may petition to consolidate the disputes before a single Administrative Panel. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by ICANN".
Though the registration information indicates that the Domain Names are registered by three different holders, the Complainant alleges that each of the registrants of the Domain Names is an alias for a single person or entity and requests to allow a single proceeding under the Policy against multiple respondents. The Respondent did not deny the above allegation. Accordingly, the Panel exercises the general power vested in it by paragraph 10(e) of the Rules to decide the request by the Complainant in accordance with the Policy and the Rules.
Paragraph 3(c) of the Rules provides that "[t]he complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder". Relevant UDRP precedents also have established that consolidation of multiple domain name disputes may be appropriate where common control is being exercised over the disputed domain names or the websites to which the disputed domain names resolve. Common control could be found in the circumstances indicating that multiple registrants are using an identical administrative contact or other instances of commonality. See Adobe Systems Incorporated v. Domain OZ, WIPO Case No. D2000-0057; Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO Case No. D2000-0587.
In this case, the Complainant has proven to the satisfaction of the Panel that <intercontinentalchongqing.com> and <intercontinentalnanjing.com> are registered and being controlled by the same holder since the two use an identical administrative contact email address "[…]@126.com" and their websites use an identical hotel reservation hotline number.
Though the Panel is not totally satisfied with the reasons and evidence presented on record by the Complainant in respect of <intercontinentalshenzhenhotel.com>, the Panel determines that <intercontinentalshenzhenhotel.com> is also registered and being controlled by the Respondent. When browsing the Chinese websites of the Domain Names, the Panel noticed that the three sites all use an identical hotel reservation hotline number. Moreover, an identical recordation number is being displayed at the bottom of all three websites (both the English and Chinese websites).
The Panel further considers that it would place an unjustifiable economic burden on the Complainant if it is required to initiate separate proceedings, and that it would be a burden on the administrative process to require duplication of effort. The Panel therefore concludes that consolidation of multiple respondents in this case is acceptable.
The Complainant contends that each of the Domain Names is confusingly similar to the INTERCONTINENTAL trademark. The Complainant alleges that the addition of geographic identifier words and generic words is not sufficient to escape the finding of confusing similarity between the Complainant's trademark and the Domain Names.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Names in that it has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the INTERCONTINENTAL trademark in any manner.
The Complainant finally contends that the Domain Names were registered and are being used in bad faith. The Respondent knew of the INTERCONTINENTAL trademark when registering the Domain Names, and has intentionally attempted to attract for commercial gain, Internet users to a website, by creating a likelihood of confusion with the INTERCONTINENTAL trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent's websites or of a product or service on the Respondent's websites.
The Respondent did not reply to the Complainant's contentions.
Trademark registrations of the INTERCONTINENTAL mark relevant to this case include, without limitation, the following:
- Chinese Trademark Registration No. 989822, registered on April 21, 1997;
- United States Trademark Registration No. 0890271, registered on April 28, 1970;
- United States Trademark Registration No. 2005852, registered on October 8, 1996;
- United States Trademark Registration No. 3486561, registered on August 12, 2008.
The Panel is satisfied that the Complainant has registered trademark rights in the INTERCONTINENTAL mark.
Each of the Domain Names consists of "intercontinental", which is identical to the Complainant's INTERCONTINENTAL trademark. The Panel views that the addition of geographic identifier words "chongqing", "nanjing" and "shenzhen", and the generic word "hotel", could not avoid a finding of confusing similarity, but instead, increases the likelihood of confusion between the Domain Names and the Complainant's trademark, since the added words relate to the Complainant's business.
As an addition of the suffixes such as ".com" being the generic Top-Level Domain does not typically function as a distinguishing factor, the Panel accordingly finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy and the Domain Names are confusingly similar to the Complainant's INTERCONTINENTAL trademark.
There is no indication that the Respondent demonstrated, before notice to it of the dispute, use of or demonstrable preparations to use the Domain Names in connection with a bona fide offering of goods or services. In fact, the Respondent is using the Domain Names to offer hotel reservation services and features the corresponding websites as "official site", without disclosing its real relationship with the Complainant. The Panel finds that the Respondent's use of the Domain Names to divert Internet users to unauthorized websites is not a bona fide use within the meaning of paragraph 4(c)(i) of the Policy.
In the circumstances where the Complainant possesses exclusive trademark rights to the INTERCONTINENTAL mark while the Respondent seems to have no trademark rights in INTERCONTINENTAL and the Complainant claims it has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the INTERCONTINENTAL trademark in any manner, the Panel is satisfied that the Respondent does not have rights or legitimate interests in respect of the Domain Names under paragraph 4(c) of the Policy.
It is well-established by UDRP precedents that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent. See International Hospitality Management – IHM S.p.A. v. Enrico Callegari Ecostudio, WIPO Case No. D2002-0683. The Respondent however has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right or legitimate interest in the Domain Names.
The Panel thus draws such inference as the Panel considers appropriate, which is that the Respondent appears to be unable to adduce evidence of any rights or legitimate interests to the Domain Names, and concludes that the Respondent has no rights or legitimate interests in respect of the Domain Names.
The Complainant and its trademark INTERCONTINENTAL enjoy a high reputation worldwide including in China where the Respondent resides. The Panel finds that it is highly unlikely that the Respondent would not have had actual notice of the Complainant's trademark at the time of registering the Domain Names, especially given that the Respondent combined the famous INTERCONTINENTAL mark with words "chongqing", "nanjing", "shenzhen" and "hotel" which are famous Chinese city names and the generic name of the industry the Complainant operates in. The Panel concludes that the Respondent was well aware of the INTERCONTINENTAL mark at the time of registration and such awareness suggests opportunistic bad faith registration. See Deutsche Bank AG v. Diego-Arturo Bruckner, WIPO Case No. D2000-0277.
The Complainant has introduced sufficient evidence to demonstrate that the Respondent is using the Domain Names in bad faith, including using the Domain Names to host websites purporting to be the official websites of the Complainant's Inter-Continental hotels in Chongqing, Nanjing and Shenzhen and providing hotel reservation services. The Panel holds that the Respondent, by using the Domain Names, is trying to profit from the diversion of Internet users by confusion between the Domain Names and the Complainant's trademark. The Respondent's purpose of registering the Domain Names is to trade on the fame of the Complainant's famous INTERCONTINENTAL trademark, in order to attract, for commercial gain, Internet users to the corresponding websites under the Domain Names, by creating a likelihood of confusion with the Complainant and the INTERCONTINENTAL trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent's websites or of a product or service on the Respondent's websites.
Based on the above facts and reasons, the Panel finally concludes that the Respondent registered and is using the Domain Names 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 Domain Names, <intercontinentalchongqing.com>, <intercontinentalnanjing.com> and <intercontinentalshenzhenhotel.com>, be transferred to the Complainant.
Linda Chang
Sole Panelist
Date: April 29, 2014