MHG IP HOLDING (SINGAPORE) PTE. LTD. v. qi shan han
Claim Number: FA2206002000580
Complainant is MHG IP HOLDING (SINGAPORE) PTE. LTD. (“Complainant”), represented by Michelle Ray-Jones of Tilleke & Gibbins International Ltd., Thailand. Respondent is qi shan han (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hotelanantara.com>, registered with Chengdu West Dimension Digital Technology Co., Ltd..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 16, 2022; the Forum received payment on June 16, 2022.
On June 16, 2022, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <hotelanantara.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 20, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of July 11, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@hotelanantara.com. Also on June 20, 2022, the Chinese and English language Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 15, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable Neil Anthony Brown QC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement is written in the Chinese language, thereby making the language of the proceedings to be Chinese.
However, Rule 11(a) provides that the Panel may determine, having regard to all the circumstances, that the administrative proceeding should be conducted in a different language from that of the Registration Agreement. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English).
The Complainant submits that the Panel should use its discretion to allow the language of this proceeding to be English. In support of that submission, Complainant says that the disputed domain name comprises Latin script and the English language word “hotel”. This may suggest that Respondent has at least some proficiency in the English language.
Complainant also makes the point that translation of the Amended Complaint from English to Chinese and translation of the pleadings or a decision from Chinese to English, would impose a significant burden on the Complainant.
The Panel has examined all of the circumstances and determines pursuant to Rule 11(a) that the proceeding should be conducted in the English language.
A. Complainant
Complainant made the following contentions.
Complainant, MHG IP Holding (Singapore) Pte. Ltd., offers hotel and other related services. Complainant has rights in the ANANTARA mark through its registration with multiple trademark agencies, such as the New Zealand Intellectual Property Office (e.g. Reg. No. 1,105,613, registered on June 29, 2018). See Compl. Ex. A. Respondent’s <hotelanantara.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety while adding the descriptive term “hotel” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <hotelanantara.com> domain name. Respondent is not commonly known by the disputed domain name. Respondent previously diverted internet users using the domain name to its own website and currently it resolves to an inactive webpage.
Respondent registered and uses the <hotelanantara.com> domain name in bad faith. Respondent diverted users for commercial gain while creating a likelihood of confusion as to the website’s affiliation with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a Singapore company that conducts hotel and related services.
2. Complainant has established its rights in the ANANTARA mark through its registration of the mark with multiple trademark agencies, such as the New Zealand Intellectual Property Office (e.g. Reg. No. 1,105,613, registered on June 29, 2018).
3. Respondent registered the <hotelanantara.com> domain name on December 4, 2019.
4. Respondent had formerly used the domain name to divert internet users who were using the domain name to Respondent’s own website, and it currently resolves to an inactive webpage.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
(a) Respondent has chosen to take Complainant’s ANANTARA mark and to use it in its domain name adding only the descriptive word “hotel” to the mark;
(b) Respondent registered the domain name on December 4, 2019;
(c) Respondent has used the domain name to divert internet users who were using the domain name to Respondent’s own website, and it currently resolves to an inactive webpage;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent is not commonly known by the <hotelanantara.com> domain name, nor has Complainant authorized or licensed Respondent to use its mark in the disputed domain name. Under Policy ¶ 4(c)(ii), WHOIS information may demonstrate that a Respondent is not commonly known by the disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s claim that it never authorized or licensed Respondent to use its mark in the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Here, the WHOIS information identifies Respondent as “qi shan han”, and nothing in the record rebuts Complainant’s submission that it never authorized or licensed Respondent to use its mark in the disputed domain name. See Registrar Verification Email. Thus, as the Panel agrees, it finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant contends that Respondent is not using the <hotelanantara.com> domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), diverting users to a respondent’s webpage does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the disputed domain name’s previously resolving website, which, in December 2019 resolved to news articles in the Chinese language. See Compl. Ex. D. Additionally, in February 2022, the resolving webpage offered vacuum products for sale. See Compl. Ex. E. Furthermore, shortly after February 2022, the webpage resolved to gambling content in the Chinese language. See Compl. Ex. F. Since Respondent only seems to be diverting users from Complainant’s website, the Panel finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii);
(g) Complainant argues that Respondent is not using the <hotelanantara.com> domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use by inactively holding the disputed domain name’s resolving webpage. Under Policy ¶¶ 4(c)(i) and (iii), failure to make active use of a domain name does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). Complainant submits that the disputed domain name’s resolving website is inactively held. As the Panel agrees, it finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
Secondly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the ANANTARA mark and in view of the conduct that Respondent has engaged in when using the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hotelanantara.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: July 19, 2022
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