Claim Number: FA0804001180521
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is pekin2008.org, registered with DomainDoorman LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 22, 2008; the National Arbitration Forum received a hard copy of the Complaint on April 23, 2008.
On May 20, 2008, DomainDoorman LLC confirmed by e-mail to the National Arbitration Forum that the <pekin2008.org> domain name is registered with DomainDoorman LLC and that Respondent is the current registrant of the name. DomainDoorman LLC has verified that Respondent is bound by the DomainDoorman LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
22, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 11, 2008
by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 16, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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.
A. Complainant makes the following assertions:
1. Respondent’s <pekin2008.org> domain name is confusingly similar to Complainant’s BEIJING 2008 mark.
2. Respondent does not have any rights or legitimate interests in the <pekin2008.org> domain name.
3. Respondent registered and used the <pekin2008.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Organizing Committee for the Games of the XXIX Olympiad, is the local
organizing committee for the Olympic Games in 2008, and is charged by the
International Olympic Committee (“IOC”) with the protection of its BEIJING 2008
city/year mark (Reg. No. 2,739,492 issued July 22, 2003, filed September 19,
2000), which was registered with the United States Patent and Trademark Office
(“USPTO”). Complainant has expended
substantial resources in accumulating the goodwill surrounding the mark. Complainant then relies on this goodwill for
funding purposes, as it receives revenue solely from the licensing rights for
television broadcasts and sponsorship programs.
Complainant also owns and operates the <beijing2008.com> domain
name in conjunction with its Olympic operations. Finally,
Respondent registered the <pekin2008.org> domain name on March 4, 2007, and is not currently using the disputed domain name to resolve to any operating website.
Respondent has also been the respondent in numerous other UDRP proceedings in which the disputed domain names were transferred from Respondent to the respective complainants in those cases.
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."
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.”).
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.
Complainant has submitted evidence of its registration of
the BEIJING 2008 mark with the USPTO, which also predates Respondent’s registration
of the disputed domain name by almost 4 years.
This evidence serves to confer sufficient rights upon Complainant in the
mark under Policy ¶ 4(a)(i), and allows Complainant to
obtain standing under the UDRP. See
Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16,
Respondent’s <pekin2008.org> domain name includes
a novel alteration of Complainant’s BEIJING 2008 mark. Complainant submitted evidence that suggests
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent lacks rights and legitimate interests in the <pekin2008.org> domain name under Policy ¶ 4(a)(ii). Complainant is required to set forth a sufficient prima facie case supporting its allegations before the burden shifts to Respondent. The Panel finds that Complainant has met its burden, and therefore Respondent must prove that it does have rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s <pekin2008.org> domain name does not resolve to any operating website. Respondent has owned the disputed domain name for over one year, and the current year is listed in the actual disputed domain name. Since Respondent has failed to respond to the Complaint, it is difficult for Respondent to point to any evidence of demonstrable preparations to use, much less any actual activity or use itself, of the disputed domain name. Respondent can be said to be inactively holding the disputed domain name. Therefore, with the evidence set before the Panel for scrutiny, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name because there is no bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that the respondent had not established any rights or legitimate interests in the domain name); see also LFP, Inc. v. B & J Props., FA 109697 (Nat. Arb. Forum May 30, 2002) (find that a respondent cannot simply do nothing and effectively “sit on his rights” for an extended period of time when the respondent might be capable of doing otherwise).
Respondent has not offered any evidence that suggests that Respondent is commonly known by the <pekin2008.org> domain name. What evidence the Panel is left to analyze is based in the WHOIS domain name registration information and use of the disputed domain name. The registrant of the disputed domain name is “Caribbean Online International Ltd.,” which bears no likeness or visual association to the disputed domain name outside of its administrative listing. Moreover, it is difficult to perceive Respondent being commonly known by an undeveloped disputed domain name. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent has engaged in a pattern
of preventing trademark owners from reflecting the marks in corresponding
domain names by registering a number of disputed domain names. The Panel finds that Respondent has been the
respondent in several other UDRP proceedings in which the panels in those cases
transferred the disputed domain names to the respective complainants. See The
Royal Bank of Scotland Group plc v.
Respondent has provided no evidence of any development corresponding to the disputed domain name, much less any demonstrably preparations to engage in such activity. Telling is the fact that Respondent has owned the disputed domain name for over one year and has not made any cognizable use, despite the fact that the current year is in the disputed domain name. The Panel finds that this inactive holding of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose); see also Hewlett-Packard Co. v. Martineau, FA 95359 (Nat. Arb. Forum Aug. 30, 2000) (“Respondent’s failure to submit an assertion of good faith intent to use the domain name, in addition to the [inactive] holding of the domain name, reveal that Respondent registered and uses the domain name in bad faith.”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pekin2008.org> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 30, 2008
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