Beijing Organizing Committee for the
Games of the XXIX Olympiad & International Olympic Committee v. GBS Data
System
Claim
Number: FA0505000479544
Complainants are
Beijing Organizing Committee for the
Games of the XXIX Olympiad and International Olympic Committee (collectively,
“Complainant”), represented by James L.
Bikoff, of Silverberg Goldman & Bikoff, LLP, 1101 30th St., N.W., Suite 120,
Washington, DC 20007. Respondent is GBS Data System (“Respondent”),
#05-118, 17 Teban Garden, Singapore 600017.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <beijing2008.org>, registered with Network
Solutions 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.
John
J. Upchurch as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on May
18, 2005; the National Arbitration Forum received a hard copy of the Complaint
on May 19, 2005.
On
May 20, 2005, Network Solutions LLC confirmed by e-mail to the National
Arbitration Forum that the domain name <beijing2008.org> is
registered with Network Solutions LLC and that Respondent is the current
registrant of the name. Network
Solutions LLC has verified that Respondent is bound by the Network Solutions
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").
On
May 23, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 13, 2005 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 postmaster@beijing2008.org by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
June 20, 2005, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the National Arbitration Forum appointed John J.
Upchurch 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.
In this case, Complainant IOC has recognized the BOCOG
as the National Olympic Committee for the country of China and responsible for
the implementation and oversight of all aspects of the 2008 Olympic Games to be
held in Beijing. The Panel finds that
Complainants have sufficiently demonstrated a proper affiliation for the
purposes of the UDRP, and thus the Complaint may go forward with the two named
Complainants.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <beijing2008.org>
domain name is identical to Complainant’s BEIJING 2008 mark.
2. Respondent does not have any rights or
legitimate interests in the <beijing2008.org> domain name.
3. Respondent registered and used the <beijing2008.org>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Respondent, GBS
Data System, has failed to respond to the Complaint. Thus, the Panel may accept all reasonable allegations and
assertions set forth by Complainant as true and accurate and base all findings
of fact on these assertions. See
Vertical Solutions Mgmt., Inc. v. webnet-Mktg., 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 Desotec
N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that
failing to respond allows a presumption that the complainant’s allegations are
true unless clearly contradicted by the evidence).
Complainant IOC
is an international non-governmental, non-profit organization that serves as
the umbrella organization of the Olympic Games. In order to designate and differentiate each Olympic Games, IOC
has a long history of using “city + year” date marks in connection with various
Olympic Games since 1896 (i.e., ATHENS 1896, STOCKHOLM 1912, SYDNEY 2000 and
ATHENS 2004).
For over a
century, IOC, its National Olympic Committees and local organizing committees
have consistently taken measures to protect the “city + year” marks associated
with the Olympic Games. Co-complainant
BOCOG is the local organizing committee for the Games of the XXIX Olympiad in
Beijing, China in 2008 and is responsible for the organization and protection
of the BEIJING 2008 mark in China.
In 1993, BOCOG
narrowly lost its bid to host the 2000 Olympic Games when Sydney, Australia was
selected to host the Games by IOC.
After losing to Sydney by two votes, Beijing became the international
favorite to host the Olympic Games in 2008, and instituted preparations to bid
for the Olympic Games. Beijing’s status
as the front-runner for the 2008 Olympics was well known throughout the
world. For example, a February 17, 1997
article published in the Washington Post acknowledged “Beijing is the
contender to beat for 2008.”
IOC has
registered the BEIJING 2008 mark with numerous international trademark authorities,
including the Swiss Federal Institute of Intellectual Property (“SFIIP”) (Reg.
No. 476,466 issued September 19, 2000), the World Intellectual Property
Organization (“WIPO”) (Reg. Nos. 750,847 issued September 19, 2000), the Office
for the Harmonization in the Internal Market (“OHIM”) (Reg. No. 1,842,814
issued August 29, 2001) and the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 2,739,492 issued July 22, 2003).
In addition to
its trademark registrations, several nations, including the United States, the
United Kingdom, Greece and China have passed national legislation to protect
the intellectual property of IOC and its various local organizing committees as
mandated in the Olympic Charter. On
April 1, 2002, China enacted the Regulations on Protection of Olympic
Symbols, stating that the various IOC marks, including the BEIJING 2008
mark, are reserved for the exclusive use of IOC and BOCOG. This legislation has been successfully used
to prevent infringement of the BEIJING 2008 mark in China.
Respondent
registered the <beijing2008.org> domain name on January 26,
1999. At the time of Respondent’s
registration, Beijing’s status as the city expected to host the 2008 Olympic
Games was well known.
Respondent has
made no active use of the disputed domain name since registering it in 1999.
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.
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
established rights in the BEIJING 2008 mark through its numerous trademark
registrations for the mark with trademark authorities throughout the world as
well as through statutory protection granted to Complainant in many nations
worldwide for its various marks. See
Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) (finding that panel decisions have held that registration
of a mark is prima facie evidence of
validity, which creates a rebuttable presumption that the mark is inherently
distinctive. The respondent has the
burden of refuting this assumption); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7,
2001) (finding that the Policy does not require that the mark be registered in
the country in which the respondent operates and that it is sufficient that the
complainant can demonstrate a mark in some jurisdiction); see also Int’l
Olympic Comm. v. Boyden, FA 201977 (Nat. Arb. Forum Dec. 19, 2003) (“The
Panel accepts Complainant’s evidence of rights in the OLYPMIC mark,
particularly the statutory and trade mark registration protection in existence
in the United States and elsewhere in the world.”).
Respondent’s <beijing2008.org>
domain name is identical to Complainant’s BEIJING 2008 mark, as the domain name
incorporates the mark in its entirety, adds the generic top-level domain “.org”
and omits the space between the terms of Complainant’s mark. The Panel finds that such minor changes are
insufficient to distinguish Respondent’s domain name from Complainant’s mark
pursuant to Policy ¶ 4(a)(i). See
Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept.
27, 2002) (finding it is a “well established principle that generic top-level domains
are irrelevant when conducting a Policy ¶ 4(a)(i) analysis”); see also Hannover
Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001)
(finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are
impermissible in domain names and a generic top-level domain such as ‘.com’ or
‘.net’ is required in domain names”).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts
that Respondent lacks rights and legitimate interests in the <beijing2008.org>
domain name. Respondent, in not
submitting a response, has done nothing to rebut this assertion. Thus, the Panel may interpret Respondent’s
failure to respond to the Complaint as evidence that Respondent lacks rights
and legitimate interests in the disputed domain name pursuant to Policy ¶
4(a)(ii). See Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326
(WIPO June 19, 2000) (finding that the respondent has no rights or legitimate
interests in the domain name because the respondent never submitted a response
or provided the Panel with evidence to suggest otherwise).
Respondent’s <beijing2008.org>
domain name is not being used in connection with any active website, nor has it
been since Respondent registered the domain name in 1999. The Panel finds that such nonuse of the
disputed domain name is neither a use in connection with a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13,
2000) (finding no rights or legitimate interests where the respondent failed to
submit a response to the complaint and had made no use of the domain name in
question); see also Ritz-Carlton
Hotel v. Club Car Executive, D2000-0611 (WIPO Sept. 18, 2000) (finding that
prior to any notice of the dispute, the respondent had not used the domain
names in connection with any type of bona fide offering of goods and services);
see also Chanel, Inc. v. Heyward,
D2000-1802 (WIPO Feb. 23, 2001) (finding no rights or legitimate interests
where “the respondent registered the domain name and did nothing with it”).
Furthermore,
nothing in the record indicates that Respondent is either commonly known by the
disputed domain name or authorized to register domain names featuring
Complainant’s BEIJING 2008 mark. Thus,
the Panel finds that Respondent has not
established rights or legitimate interests in the <beijing2008.org>
domain name pursuant to Policy ¶ 4(c)(ii).
See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16,
2001) (interpreting Policy ¶ 4(c)(ii) “to require a showing that one has been
commonly known by the domain name prior to registration of the domain name to
prevail”); see also Compagnie de
Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding
no rights or legitimate interests where the respondent was not commonly known
by the mark and never applied for a license or permission from the complainant
to use the trademarked name).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Although
Respondent’s January 26, 1999 registration of the <beijing2008.org>
domain name predates Complainant’s registrations for the BEIJING 2008 mark,
Respondent’s registration of the domain name was nevertheless in bad
faith. Complainant has provided
overwhelming evidence that Beijing was recognized internationally as the
front-runner to host the 2008 Olympic Games at the time of Respondent’s
registration, and that Respondent had actual knowledge of Complainant’s strong
connection to the BEIJING 2008 mark when it registered the disputed domain
name. Respondent, in not submitting a
response, has done nothing to rebut Complainant’s assertions or provide any
alternate explanation, so the Panel gives Complainant’s arguments a strong
presumption of accuracy. Thus, the
Panel finds that registration of a domain name that is identical to another’s
mark despite actual or constructive knowledge of another’s rights in the mark
is tantamount to bad faith registration and use pursuant to Policy ¶
4(a)(iii). See MADRID 2012, S.A. v.
Scott Martin-MadridMan Websites, D2003-0598 (WIPO Oct. 8, 2003) (finding
that the respondent registered the <madrid2012.com> domain name in bad
faith despite the fact that the complainant had not registered the mark at the
time of the domain name registration because Madrid’s bid for the 2012 Olympic
Games had been well publicized months before the respondent’s domain name
registration); see also Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb.
Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when
Respondent reasonably should have been aware of Complainant’s trademarks,
actually or constructively.”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000)
(finding that the respondent had actual and constructive knowledge of the
complainant’s EXXON mark given the worldwide prominence of the mark).
Furthermore,
Respondent has not used the disputed domain name in any active function since
registering it in 1999. The Panel finds
that such passive holding indicates bad faith registration and use pursuant to
Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp.,
D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s passive
holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the
Policy); see also 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 passive holding of a domain name permits an inference of
registration and use 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 <beijing2008.org> domain name be TRANSFERRED
from Respondent to Complainant.
John
J. Upchurch, Panelist
Dated: June 28, 2005
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