Choice Hotels International, Inc. v. qianmengdan
Claim Number: FA2212002024191
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Ashley M. Bennett Ewald of LATHROP GPM, LLP, USA. Respondent is qianmengdan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radissonhotelamericas.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on December 15, 2022; Forum received payment on December 15, 2022.
On December 16, 2022, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to Forum that the <radissonhotelamericas.com> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 December 22, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in English and Chinese, setting a deadline of January 11, 2023 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@radissonhotelamericas.com. Also on December 22, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default in English and Chinese.
On January 16, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. 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. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. 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.”).
In the present case, Respondent has received the Written Notice Commencement Notification in Chinese and has chosen not to respond to the Complaint; the resolving website is in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that, through its affiliates, licensees, and franchisees, it owns and operates more than 600 hotels in more than a dozen countries throughout the Americas, branded under several variations of the famous RADISSON trademark, including: RADISSON, RADISSON BLU, RADISSON RED, RADISSON INDIVIDUALS, PARK INN BY RADISSON, and COUNTRY INN & SUITES BY RADISSON with additional RADISSON-formative brands under development. Complainant’s predecessors-in-interest have used the RADISSON mark since at least 1909. Consumers around the world have come to recognize the RADISSON brand in connection with Complainant’s and its predecessors’ hotel services. Complainant has rights in the RADISSON mark through numerous trademark registrations, including in the United States in 1971. The mark is famous.
Complainant alleges that the disputed domain name is identical or confusingly similar to the its RADISSON mark, as it incorporates the mark in its entirety and merely adds the generic/descriptive term “hotel”, the geographic term “americas” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the RADISSON marks since Respondent is not licensed or authorized to use Complainant’s RADISSON marks and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Rather, the disputed domain name resolved to a site with competing advertising hyperlinks. The disputed domain name is also an example of typosquatting. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith by hosting hyperlinks to content that competes with Complainant. Respondent is also typosquatting and registered the disputed domain name with constructive or actual knowledge of Complainant’s rights in the RADISSON marks. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark RADISSON and uses it to provide hotel services.
Complainant’s rights in its mark date back to at least 1971.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website hosts advertising hyperlinks links to services that compete with those of Complainant.
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”).
The disputed domain name incorporates Complainant’s RADISSON mark in its entirety and merely adds the generic/descriptive term “hotel”, the geographic term “americas” and the “.com” generic top-level domain (“gTLD”). The addition of generic or descriptive or geographic terms and gTLDs to a mark does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable 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 also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the <radissonhotelamericas.com> domain name is confusingly similar to Complainant’s RADISSON mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its RADISSON mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information for the disputed domain name lists the registrant as “qianmengdan”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website hosts advertising hyperlinks, several of which offer services that compete with Complainant. Previous Panels have found that a respondent’s use of a domain name to display random or competing hyperlinks does not constitute a bona fide offering of goods or services nor a legitimate noncommercial or fair use of a domain name. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website displays hyperlinks to content that competes with Complainant’s services. Previous Panels have found that a respondent’s use of a disputed domain name to display competing hyperlinks shows bad faith disruption of a complainant’s business pursuant to Policy ¶ 4(b)(iii) and bad faith attraction for commercial gain pursuant to Policy ¶ 4(b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <radissonhotelamericas.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 16, 2023
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