The Complainant is Accor of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Tan Pei Quan of Guangdong, China.
The disputed domain name <pullmanbyhotel.com> is registered with GoDaddy.com, LLC (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 16, 2015. On September 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2015, 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.
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 proceeding commenced on September 28, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 19, 2015.
The Center appointed Sok Ling Moi as the sole panelist in this matter on October 30, 2015. 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.
On October 30, 2015, due to exceptional circumstances, the Panel extended the due date for rendering its decision until November 16, 2015.
The Complainant is a global hotel company which operates a portfolio of more than 3,700 hotels in 92 countries worldwide. The Complainant's hotel brands include "Pullman", "Novotel", "Mercure" and "Ibis". Its Pullman network in China comprises more than 20 hotels and resorts located in major cities and prime tourist destinations including the "Pullman Guangzhou Baiyun Airport" hotel located in the city of Guangzhou.
The Complainant owns trade mark registrations for the PULLMAN trade mark in several countries in connection with its hotel and resort services, including the following trade mark registrations:
Mark | Country | Class | Registration Number | Registration Date |
|
PULLMAN |
International Register |
43 |
1197984 |
November 28, 2013 |
|
PULLMAN |
International Register |
29, 30, 33 and 42 |
502625 |
May 5, 1986 |
|
PULLMAN HOTELS AND RESORTS |
International Register (designating China) |
43 |
1188855 |
October 10, 2013 |
|
PULLMAN |
China |
43 |
4734292 |
February 7, 2009 |
The Complainant operates a website at its registered domain name <pullmanhotels.com>.
The disputed domain name <pullmanbyhotel.com> was registered on May 25, 2014, long after the Complainant's PULLMAN trade mark was first registered and used in commerce. It currently resolves to a website which shows the PULLMAN trade mark and the purported offer for reservation of rooms at the Pullman Guangzhou Baiyun Airport hotel.
The Complainant and its trade mark PULLMAN enjoy a worldwide reputation.
A1. The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:
The disputed domain name <pullmanbyhotel.com> reproduces the Complainant's trade mark PULLMAN in its entirety. The terms "by" and "hotel" do not dispel any likelihood of confusion. On the contrary, the term "hotel" increases the level of confusion since it corresponds to the Complainant's field of activity. The addition of the generic Top-Level Domain (gTLD) ".com" is not sufficient to avoid a finding of confusing similarity.
A2. The Respondent has no rights or legitimate interests in respect of the disputed domain name:
The registration of the trade mark PULLMAN by the Complainant preceded the registration of the disputed domain name by years. With the disputed domain name being so similar to a famous trade mark PULLMAN, the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain name.
The Respondent is not commonly known by the name "pullman", nor is it in any way affiliated with the Complainant, nor authorised or licensed to use the trade mark PULLMAN or seek registration of any domain name incorporating the said trade mark.
The Respondent did not demonstrate use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Instead, the disputed domain name resolves to a Chinese website reproducing the trade mark PULLMAN and photos of the Complainant's "Pullman Guangzhou Baiyun Airport" hotel, purportedly offering an online booking service.
A3. The disputed domain name was registered and is being used in bad faith:
It is implausible that the Respondent was unaware of the Complainant and its trade mark PULLMAN when it registered the disputed domain name since PULLMAN is a well known trade mark throughout the world including in China where the Respondent is located. In fact, the reproduction of photos of the Complainant's "Pullman Guangzhou Baiyun Airport" hotel on the Respondent's website clearly proves actual knowledge.
The Respondent's website is made to look like an official website belonging to the Complainant and purported to offer a booking service for rooms at the Complainant's "Pullman Guangzhou Baiyun Airport" hotel. This is not a bona fide use of the disputed domain name.
In view of the above, the Complainant requests for the disputed domain name <pullmanbyhotel.com> to be cancelled.
The Respondent did not reply to the Complainant's contentions.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark 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.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows:
The Panel accepts that the Complainant has rights in the PULLMAN trade mark by virtue of use and registration.
The disputed domain name is confusingly similar to the PULLMAN trade mark because it incorporates the trade mark in its entirety. The Panel agrees with the Complainant's argument that the use of the word "hotel" compounds the confusion, as it suggests connection to the Complainant's hotel business. In fact, the term "by" may be seen as an abbreviated acronym for "Baiyun" and so further compounds the confusion. The addition of the gTLD ".com" does not detract from the confusing similarity. The Panel therefore has no difficulty in finding that the disputed domain name is confusingly similar to the PULLMAN trade mark in which the Complainant has rights.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy.
Under paragraph 4(a)(ii), the Complainant bears the burden of establishing that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under paragraph 4(a)(ii), the burden shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c):
(i) before any notice to it 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 has been commonly known by the disputed domain name, even if it 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.
(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao internet foshan co, ltd, WIPO Case No. D2013-0974).
There is no evidence suggesting that the Respondent is commonly known by the term "pullman" or similar terms. The Respondent's name is "Tan Pei Quan" which bears no resemblance to the disputed domain name. The Complainant has also confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the PULLMAN trade mark.
The Panel is satisfied that the Complainant has made out a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. Indeed, by claiming to accept reservations for rooms in the Complainant's "Pullman Guangzhou Baiyun Airport" hotel despite a lack of affiliation or association with or authorization from the Complainant, it appears that the Respondent has intent to, for commercial gain, mislead Internet users into believing that its website at "www.pullmanbyhotel.com" is somehow connected with the Complainant.
The Respondent has failed to respond. Since no response was filed, the prima facie case has not been rebutted.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy.
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's websites or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's websites or location or of a product or service on the Respondent's website or location.
The Panel finds that the Respondent has registered the disputed domain name in bad faith. The Respondent was clearly aware of the Complainant and of its PULLMAN trade mark and hotels when it registered the disputed domain name. The fact that the Respondent purports to offer valid reservation services at the Complainant's "Pullman Guangzhou Baiyun Airport" hotel, and that its website reproduces photos of the Complainant's hotel, augments this conclusion.
The Panel agrees with the Complainant's assertion that the Respondent is using the disputed domain name to take advantage of the similarity with the Complainant's PULLMAN trade mark, to unfairly attract customers to its website. Further, by purporting to offer valid reservation services at the Complainant's "Pullman Guangzhou Baiyun Airport" hotel despite the lack of affiliation or association with the Complainant, it is clear that the Respondent has intent to mislead consumers and Internet users into believing that its website "www.pullmanbyhotel.com" is owned by or somehow connected with the Complainant. In the Panel's opinion, there is therefore a high possibility that consumers and Internet users would be confused as to the sponsorship, affiliation and endorsement of the Respondent's website, and to the source of the products/services offered on the Respondent's website.
The Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case, and taking into account all other relevant circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of 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, <pullmanbyhotel.com>, be cancelled.
Sok Ling Moi
Sole Panelist
Date: November 17, 2015