national arbitration forum




Beijing Organizing Committee for the Games of the XXIX Olympiad and International Olympic Committee v. OpenBusiness Ltd

Claim Number: FA0804001181252



Complainant is Beijing Organizing Committee for the Games of the XXIX Olympiad and International Olympic Committee (“Complainant”), represented by James L. Bikoff, of Silverberg Goldman & Bikoff, LLP, Washington, D.C., USA.  Respondent is OpenBusiness Ltd (“Respondent”), Switzerland.



The domain name at issue is <>, registered with Network Solutions, Inc.



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.


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



Complainant submitted a Complaint to the National Arbitration Forum electronically on April 24, 2008; the National Arbitration Forum received a hard copy of the Complaint on April 25, 2008.


On April 25, 2008, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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").


On May 5, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 27, 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 by e-mail.


Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.


On May 30, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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 <> domain name is confusingly similar to Complainant’s BEIJING 2008 mark.


2.      Respondent does not have any rights or legitimate interests in the <> domain name.


3.      Respondent registered and used the <> domain name in bad faith.


B.  Respondent failed to submit a Response in this proceeding.



Complainant, Beijing Organizing Committee for the Games of the XXIX Olympiad and International Olympic Committee, is the local organizing committee for the 2008 Olympic games that will be held in Beijing, China.  Co-Complainant, the International Olympic Committee (“IOC”), owns the rights to the BEIJING 2008 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 was bestowed with the responsibility of protecting the City and Year marks on behalf of the IOC, and the mark represents a valuable asset to ensure the ability to fund the games as revenue is garnered primarily from sale of broadcasting rights.  Complainant also owns and operates the <> domain name.


Respondent registered the disputed domain name on June 23, 1999, and is not currently using the disputed domain name to resolve to any operating website.



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.


Identical and/or Confusingly Similar


The Panel finds that Complainant’s registration of the disputed domain name with the USPTO confers upon Complainant rights in the BEIJING 2008 mark under Policy ¶ 4(a)(i).  The Panel also finds that federal statutes giving Complainant exclusive rights in Olympic marks such as the instant mark are wholly sufficient to achieve standing under the UDRP and Policy ¶ 4(a)(i).  See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Int'l Olympic Comm. v. Ritchey, FA 128817 (Nat. Arb. Forum Jan. 20, 2003) (finding that the Olympic Amateur Sports Act, granting the complainant exclusive rights in the Olympic symbol and the word Olympic, preempts any chance for the respondent to claim rights or legitimate interests in an infringing domain name).


Complainant also asserts common law rights in the mark.  Complainant contends that after losing its 1994 bid to host the 2000 Olympics by two votes to Sydney, Australia, it prepared to bid for the 2008 Olympics, in which its bid was declared the winner by the IOC.  Complainant submits as evidence a Washington Post article dated from 1997 in which Complainant is declared as the top contender and frontrunner for the 2008 Olympics.   Such evidence predates Respondent’s registration of the disputed domain name.  The Panel therefore finds that Complainant’s mark achieved secondary meaning to grant standing under the UDRP based on the foregoing evidence, pursuant to Policy ¶ 4(a)(i).  See Bibbero Sys., Inc. v. Tseu & Assoc., FA 94416 (Nat. Arb. Forum May 9, 2000) (finding, while the complainant had registered the BIBBERO SYSTEMS, INC. mark, it also had common law rights in the BIBBERO mark because it had developed brand name recognition with the word “bibbero”); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established).


Respondent’s <> domain name incorporates an alternative version of Complainant’s BEIJING 2008 mark.  Complainant submits evidence indicating the Beijing, China, was formerly known by Jesuit missionaries as “Peking.”  Complainant also submits reference evidence noting that “Pekin” is an alternate form of spelling “Peking,” and that the French and Spanish word for Beijing is also “Pekin.”  Aside from this translation, the mark is essentially equivalent given the inclusion of the Olympic year 2008, and the addition of the generic top-level domain “.com.”  The Panel notes that the inclusion of this top-level domain is irrelevant under Policy ¶ 4(a)(i), and that the dominant feature of the disputed domain name is Complainant’s mark, albeit with a direct translation for the same city.  Given the context for the connection of Beijing/Pekin and the year 2008, the Panel finds that the two city names are interchangeable for the purposes of Policy ¶ 4(a)(i), and that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).  See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”); see also Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) (“Notwithstanding the analysis by Respondent, ‘modprops’ is a contraction or shorthand for ‘Modern Props.’ ‘Mod’ cononotes [sic] ‘modern’ regardless of any other dictionary meanings, so the names are substantially similar in meaning.”).


The Panel finds that Policy ¶ 4(a)(i) has been satisfied.


Rights or Legitimate Interests


Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name.  Because Complainant has set forth a prima facie case supporting its allegations, Respondent receives the burden of demonstrating its rights or legitimate interests under Policy ¶ 4(a)(ii).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v., 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).


There is no evidence within the record to suggest that Respondent’s <> domain name is being used in any sense, much less that there are any demonstrable preparations to achieve some usage.  As such, the Panel finds that Respondent’s inactive holding of the disputed domain name fails to constitute a 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 Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the respondent is not commonly known by the domain name); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [inactive] holding of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).


The Panel finds that there is no evidence, including the WHOIS domain name registration information, to suggest that Respondent is commonly known by the disputed domain name.  Moreover, there is no evidence of license or permission by Complainant that would allow Respondent to use Complainant’s mark.  The Panel therefore finds that Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).


The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.


Registration and Use in Bad Faith


Complainant argues that Respondent’s disputed domain name creates a high likelihood of confusion as to Complainant’s affiliation and endorsement of the disputed domain name.  Indeed, Complainant’s mark is virtually indistinguishable from the disputed domain name, aside from the city’s direct and unaltered common multi-language translation.  Internet users world-wide seeking information about or on Complainant’s Olympic product and events will likely happen across this disputed domain name, and be likely confused as to the dead-end that Respondent’s inactive holding has created.  The Panel finds that Respondent has therefore engaged in bad faith registration and use under Policy ¶ 4(a)(iii).  See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that inactive holding of a domain name permits an inference of registration and use in bad faith); see also 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).


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 <> domain name be TRANSFERRED from Respondent to Complainant.



Honorable Karl V. Fink (Ret.), Panelist

Dated:  June 13, 2008



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