DECISION

 

Radisson Hotels International, Inc. v. Yue Mei Wang / Wang Yue Mei aka Pei Jun Gan / Gan Pei Jun / Jun Yu He / He Jun Yu / denliyan

Claim Number: FA1504001615349

 

PARTIES

Complainant is Radisson Hotels International, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA.  Respondent is Yue Mei Wang / Wang Yue Mei aka Pei Jun Gan / Gan Pei Jun / Jun Yu He / He Jun Yu / denliyan (“Respondent”), Grenada.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, and <radissonplazahoteltianjin.com>, registered with Chengdu west dimension digital technology Co., LTD; and <radissonbluhotelshanghai.com>, registered with GUANGDONG JINWANBANG TECHNOLOGY INVESTMENT CO. LTD.

 

PANEL

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.

 

Hon. Karl V. Fink (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on April 20, 2015; the Forum received payment on April 24, 2015.

 

On April 20, 2015, GUANGDONG JINWANBANG TECHNOLOGY INVESTMENT CO. LTD. confirmed by e-mail to the Forum that the <radissonbluhotelshanghai.com> domain name is registered with GUANGDONG JINWANBANG TECHNOLOGY INVESTMENT CO. LTD. and that Respondent is the current registrant of the name.  GUANGDONG JINWANBANG TECHNOLOGY INVESTMENT CO. LTD. has verified that Respondent is bound by the GUANGDONG JINWANBANG TECHNOLOGY INVESTMENT 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 April 21, 2015, Chengdu west dimension digital technology Co., LTD confirmed by e-mail to the Forum that the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, and <radissonplazahoteltianjin.com>, domain names are registered with Chengdu west dimension digital technology Co., LTD and that Respondent is the current registrant of the names.  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 April 28, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2015 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@radissonbluplazachongqing.com, postmaster@radissonbluchongqingshapingba.com, postmaster@radissonplazahoteltianjin.com, and  postmaster@radissonbluhotelshanghai.com.  Also on April 28, 2015, the 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 May 28, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

Complainant

Complainant uses the RADISSON and RADISSION BLU marks in connection with its business in the hotel industry.  Complainant has registered the RADISSON and RADISSON BLU marks with the likes of the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. Nos. 920,862 and 4,070,968, respectively; Registered September 21, 1971 and December 13, 2011, respectively), establishing rights in the marks under Policy ¶ 4(a)(i).  Respondent’s <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names are confusingly similar as they incorporate either the RADISSON or RADISSON BLU mark entirely, while adding the generic descriptive words such as “hotel” and/or “plaza” and geographic descriptors in addition to the generic top-level domain (“gTLD”) “.com.”

 

Respondent has no rights or legitimate interests in the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names.  Respondent is not commonly known by the disputed domain names, nor is Respondent authorized by Complainant to use the RADISSON or RADISSON BLU marks in connection with domain name registrations.  Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use through the disputed domain names.  Respondent is involved in a scheme to defraud customers of Complainant by showing unauthorized hotel booking websites which pass themselves off as legitimate sites of Complainant’s and charging customers for “superior” quality rooms when they are actually purchasing lower quality rooms.

 

Respondent has acted in bad faith under Policy ¶ 4(b)(ii) as evidenced by its pattern of domain name registrations in the present case.  Under Policy ¶ 4(b)(iv), Respondent has attempted to attract Internet users for commercial gain by engaging in a fraudulent scheme to confuse Internet users and engage in the deceptive booking of hotel rooms which are lower in quality than what the customers pay for, while pocketing the difference in price.  Finally, Respondent was on actual notice that it was infringing upon Complainant’s marks.

 

Respondent

Respondent did not submit a Response in this proceeding.

 

Preliminary Issue: Multiple Respondents

 

In the instant proceeding, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases.  Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”  In the present case, the WHOIS record for each of the Disputed Domains lists a different registrant, address and phone number.  At first glance this would appear to suggest that each of the domains is owned by a different person.  However, Complainant contends that the first three Disputed Domains all list an identical email address for the registrant and administrative contact, namely, “radissonblu_hotel@126.com”.  The fourth Disputed Domain allegedly shares identically-formatted content and also utilizes a registrant and administrative contact email address ending with “@126.com”.  This indicates that the registrants of the Disputed Domains are an alias for a single person or entity.  As such, Complainant requests that the Forum and the Panel allow a single proceeding under the Policy against multiple respondents.  Complainant also notes the following:

 

a)    The websites which resolve from all four of the Disputed Domains use identical formats and layouts with each employing a “Home” page, a “Photos” page, a “Booking” page, a “Contact Us” page, and others;

b)    The websites which resolve from all four of the Disputed Domains all use identical hotel reservations phone numbers – either “0086-20-86009099” in the case of the English language websites, or “4000-380-666” in the case of the Chinese language pages.

c)    The WHOIS records for the first three Disputed Domains all use the identically-formatted registrant and administrative contact email address “radissonblu_hotel@126.com”;

d)    The WHOIS record for the fourth Disputed Domain also utilizes a registrant and administrative contact email address ending with “@126.com”; and

e)    The WHOIS records for the first three Disputed Domains all list an identically-formatted name server “ns[...].myhostadmin.net.”

 

The final proof of common ownership of the Disputed Domains, according to Complainant, is the fact that the true Respondent in this case has perpetrated an identical scheme against another hotel chain in the past.  In Inter-Continental Hotels Corporation v. Hui Lian Yang/Yang Hui Lian; a/k/a Jian Ren Zhou/Zhou Jian Ren; a/k/a Jian Guo Liu/Liu Jian Guo, WIPO Case No. D2014-0272, the Complainant provided very similar evidence as noted above leading the Panel to grant consolidation of three different domain names stating: “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.”  Complainant asserts that the true respondent in the Inter-Continental Hotels Corporation case is the same person or entity which owns the Disputed Domains in the present case.

 

Based on the above, Complainant asserts that sufficient grounds exist for this Panel to consolidate all of the Disputed Domains into this single Complaint.     

 

The Panel finds that Complainant has sufficiently presented evidence demonstrating that the disputed domain names are controlled by the same holder using multiple aliases.

 

Preliminary Issue: Language of the Proceedings

 

Complainant requests that the language of this administrative proceeding be in English pursuant to UDRP Rule 11(a).  Complainant makes this request in light of the Chinese language Registration Agreement.  It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties.  Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would evince a familiarity with the English language, filing of a trademark registration with an entity which evinces an understanding of the English language, and any evidence (or lack thereof) evincing Respondent’s understanding of the Chinese language included in the Registration Agreement.  See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language).  The relative time and expense in enforcing the Chinese language agreement may result in prejudice toward Complainant.  See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”). 

 

Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant that the Respondent is conversant and proficient in the English language.  After considering the circumstance of the present case, the Panel determines that the proceeding should be in English.

 

FINDINGS

For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.

 

DISCUSSION

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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

 

Identical and/or Confusingly Similar

Complainant uses the RADISSON mark in connection with its business in the hotel industry.  Complainant registered the RADISSON mark with the USPTO (Reg. No. 920,862, Registered September 21, 1971).  Panels have found such registrations sufficient in establishing rights under Policy ¶ 4(a)(i), even where complainant and respondent operate in different countries. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).  Accordingly, the Panel finds that Complainant has rights in the RADISSON mark under Policy ¶ 4(a)(i).

 

Complainant also uses the RADISSION BLU mark in connection with its business in the hotel industry.  Complainant registered the RADISSON BLU mark with the USPTO (Reg. No. 4,070,968, Registered December 13, 2011). Pursuant to Metro. Life Ins. Co. and Williams-Sonoma, Inc., the Panel finds that Complainant’s USPTO registrations in the RADISSON and RADISSON BLU marks demonstrate Complainant’s rights pursuant to Policy ¶ 4(a)(i).  FA 873143; FA 937704.

 

Complainant argues that Respondent’s <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names are confusingly similar as they incorporate either the RADISSON or RADISSON BLU mark entirely, while adding descriptive words such as “hotel” or “plaza” and geographic descriptors in addition to the gTLD “.com.”  Panels have found such alterations to a mark are insufficient to overcome a finding of confusing similarity under Policy ¶ 4(a)(i).  See Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark); see also AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000) (finding that the <axachinaregion.com> domain name “is confusingly similar to the Complainant's trade mark ‘AXA’” because “common geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).  Therefore, the Panel agrees that the domain names are confusingly similar to Complainant’s marks under Policy ¶ 4(a)(i).

 

Complainant has proved this element.

 

Rights or Legitimate Interests

 

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), and then the burden shifts to Respondent to show it does have rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names.  Complainant contends that Respondent is not commonly known by the disputed domain names, nor is Respondent authorized by Complainant to use the RADISSON or RADISSON BLU marks in connection with domain name registrations.  In light of the available WHOIS information, and Respondent’s failure to submit a response, the Panel finds there is no evidence that Respondent is commonly known by the disputed domain names under Policy ¶ 4(c)(ii).  See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).

 

Complainant posits that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use through the disputed domain names.  Complainant asserts that Respondent is involved in a scheme to defraud potential customers of Complainant by showing unauthorized hotel booking websites which pass themselves off as legitimate sites of Complainant’s and charging customers for “superior” quality rooms when they are actually purchasing lower quality rooms. The Panel therefore finds that Respondent has not made a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain names under Policy ¶ 4(c)(iii).  See B Hotel Group, LLC v. Pierre Honore, FA 1564618 (Nat. Arb. Forum August 1, 2014) (find[ing] that Respondent’s unauthorized booking of hotels under a confusingly similar domain name is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use).

 

Complainant has proved this element.

 

Registration and Use in Bad Faith

Complainant argues that Respondent has acted in bad faith as evidenced by its pattern of domain name registrations in the present case under Policy ¶ 4(b)(ii).  The Panel agrees that Respondent’s registration of the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names, which all infringe on Complainant’s mark, constitutes bad faith under Policy ¶ 4(b)(ii).  See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (“Registration of more than one domain name that infringes on another’s registered mark(s) supports the inference that Respondent knew of Complainant’s marks upon registering the domain names . . . [and t]he registration of multiple domain names that infringe on Complainant’s trademarks is evidence of a pattern of conduct.”).

 

Complainant contends that Respondent has engaged in a fraudulent scheme to confuse Internet users, deceptively booking hotel rooms which are lower in quality than what the customers pay for, while pocketing the difference in price. The Panel finds such use is evidence of bad faith attraction for commercial gain under Policy ¶ 4(b)(iv).  See B Hotel Group, LLC v. Pierre Honore, FA 1564618 (Nat. Arb. Forum August 1, 2014) (“Respondent profits through a likelihood of confusion because it gives the impression that Internet users are visiting the legitimate website of Complainant  when in reality each reservation made through this website costs Complainant a 20% commission fee per night booked. The Panel notse [sic] the domain name’s website apparently promotes the booking of hotel rooms at B2 facilities. Respondent’s attempts to secure revenues and commission fees through this use of the confusingly similar <b2hotelmiamidowntown.com> domain name are evidence of an Policy ¶ 4(b)(iv) intent to profit through likelihood of confusion.”).  The Panel agrees with the decision in B Hotel Group, LLC, and finds the Respondent has demonstrated analogous behavior constituting bad faith under Policy ¶ 4(b)(iv).

 

Complainant argues that because of the fame and notoriety associated with the RADISSON and RADISSON BLU marks, Respondent registered the domain names with actual knowledge of the marks and Complainant’s rights in the mark.  The Panel agrees with Complainant that Respondent had actual notice and finds bad faith registration and use per Policy ¶ 4(a)(iii).  See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant's mark and the content advertised on the respondent's website was obvious, the respondent "must have known about the Complainant's mark when it registered the subject domain name"); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Nat. Arb. Forum March 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).

 

Complainant has proved this element.

 

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is ORDERED that the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Hon. Karl V. Fink (Ret.), Panelist

Dated:  June 1, 2015

 

 

 

 

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