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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hong Kong Trade Development Council v. Huang Yun
Case No. D2001-0100
Also in PDF File: D2001-0100
1. The Parties
The Complainant is Hong KongTrade Development Council, a statutory body incorporated in Hong Kong, having aregistered office at 38/F, Office Tower, Convention Plaza, 1 Harbour Road,Wanchai, Hong Kong SAR of P. R. China.
The Respondent is a physicalperson Ms. Huang Yun with her contacting address at 9#401 No.3 Garden Villiage,Zhang Jis Gang, 215600, Jiang Su, China.
2. The Domain Name and Registrar
Thedomain name in dispute is [<ѕгЄџўQ“„∞l’єЊ÷.com> (BQ--3CMZS3RPRS7WME3WPROFKXCA.COM)], which is registered withthe registrar Internet Names Worldwide of Melbourne, Level 2, 120 King Street,Melbourne Victoria 3000, Australia.
3. Procedural History
The WIPO Arbitration andMediation Center (the "Center") received the Complaint of the Complainanton February 5, 2001 by email and the amended Complaint by email on February 27,2001 and in hard copy on March 2, 2001.
The Center sent to theRegistrar a request for verification of registration data on
February 27, 2001. On February 27 and 28, 2001, theRegistrar confirmed that the domain name in dispute is registered with InternetNames Worldwide and the Respondent is the current registrant of the domainname.
The Center completed theformal Requirements Compliance Checklist on March 6, 2001.
On March 8, 2001, the Centersent to the Respondent the Notification of Complaint and Commencement of theAdministrative Proceeding. Thisnotification was sent by the methods required under paragraph 2(a) of theRules. The formal date of the commencementof this administrative proceeding is March 8, 2001.
On March 26, 2001, the Centerreceived a fax letter from Ms. Huang Yun (Respondent), and sent to theRespondent the Center°ѓs acknowledgement of receipt of the fax letter on March27, 2001.
On March 28, 2001, theCenter received the email from Complainant that he has not received the faxletter sent by Respondent. The Center gave its reply to Complainant in the sameday.
On March 29, 2001, theCenter sent to the Respondent Notification of Respondent°ѓs Default.
On April 19, 2001, afterreceiving a completed and signed Statement of Acceptance and Declaration ofImpartiality and Independence, the Center notified the parties of theappointment of a single-member panel consisting of Mr. Li Yong and informed theparties that a decision would be issued by May 2, 2001 absent exceptional circumstances.
4. Factual Background
The Complainant is astatutory body incorporated in Hong Kong since 1966 under the Hong Kong TradeDevelopment Council Ordinance (Annex 3 of the Complaint), and its main functionis to promote, assist and develop Hong Kong°ѓs overseas trade, with particularreference to exports.
The Chinese character of thedisputed domain name is the official Chinese name of the Complainant.
The domain name [<ѕгЄџўQ“„∞l’єЊ÷.com> (BQ--3CMZS3RPRS7WME3WPROFKXCA.COM)]was created on November 30, 2000, according to the search result made by theComplainant shown in the Annex 1 of the Complaint.
The domain name at issue has not been put into use up to now, and there is currently no content located at the www.ѕгЄџўQ“„∞l’єЊ÷.com web site.
5. Parties's Contentions
The Complainant contendsthat Hong Kong Trade Development Council is a statutory body incorporated inHong Kong since 1966 with its mission to create and facilitate opportunities ininternational trade for Hong Kong companies. The Chinese character of the disputed domain name is theofficial Chinese name of the Council
The Complainant believesthat the domain name is a unique service and reflects the identity andfunctions of its organization. Other organization, which has registered theChinese domain name same as their official Chinese name, would project a wrongimpression that they are the Council or represent the Council, both of whichare not true.
As such, the Complainantcontends that they have good reasons to believe that the current holder of thedomain name at issue has no rights or legitimate interests in respect to thedomain name.
The Complainant requests theAdministrative Panel issue a decision that the contested domain name betransferred to the Complainant.
The Respondent failed tosubmit formal Response according to paragraph 5 (a) of the Rules for UniformDomain Name Dispute Resolution Policy (the Policy), but sent a fax letter tothe Center on March 26, 2001. In the letter, the Respondent argued that theregistration of the disputed domain name was in compliance with the relevanton-line registration regulations as well as the first-registration principleenvisaged by NIS. The Respondent requested the Center to inform the Complainantthat she agreed to settle the issue with Complainant and all expenses inconnection with the registration of the disputed domain name should be born bythe Complainant. The Respondent stated °∞If both parties reach the settlement, the domain name shallbe transferred to the Complainant immediately. That is, it should be returned to the owner to whom itshould have attached. °±
6. Discussion and Findings
In accordance with the Policy, the Complainant asking for transfer of thedomain name must prove the following three elements: 1) the Respondent's domainname is identical or confusingly similar to a trademark or service mark inwhich the Complainant has rights; 2) the Respondent has no rights or legitimateinterests in the domain name; and 3) the Respondent has registered the domainname and is using it in bad faith. (ICANN Policy, 4 (a)).
Identical or Confusingly Similar
The Chinese character °∞ѕгЄџўQ“„∞l’єЊ÷°±is the official Chinese name of the Complainant. The Complainant is a bodycorporate established under the Hong Kong Trade Development Council Ordinancesince 1966, and has been performing its missions in its English and Chinesename. After so many years°ѓ development, the Complainant has been awarded thegood reputation and is quite famous in related commercial community in China.In fact, the Chinese name of the Complainant has, in practice, become theservice mark of the Complainant, which not only represents the organizationitself but also its services and functions, albeit not registered in a trademarkoffice. A corporate name, indeed any name, might acquire intellectual propertyrights over time as goodwill is accumulated in the name through businesspractice, reputation, notoriety, advertising, etc., even if not registered, andnumerous decisions under the Policy have so held (see Onu S.R.L. v. OnlineSales, LLC, Case No. AF-0672). On the other hand, the Policy itself does notcontain the provisions that trademarks or service marks shall be the registeredones to enjoy protection under the Policy. Keeping this in mind, the Panelbelieves that the Complainant enjoys the service-mark right over its Chinesename °∞ѕгЄџўQ“„∞l’єЊ÷°±.
The domain name at issue is [<ѕгЄџўQ“„∞l’єЊ÷.com> (BQ--3CMZS3RPRS7WME3WPROFKXCA.COM)].The Panel finds that the Chinese character of this domain name °∞ѕгЄџўQ“„∞l’єЊ÷°± is completely identical with theComplainant°ѓs official Chinese name, the service mark solely owned by theComplainant. The top level domain designator ".com" is only anecessary portion to form a business-related domain name and cannot function todistinguish that name from the Complainant°ѓs service mark. Therefore, the Panelbelieves that the first element of the ICANN Policy, 4(a) is met.
Respondent's Rights orLegitimate Interests in the Domain Name
The Respondent has notprovided evidence of circumstances of the type specified in the ICANN Policy,4(c). There exists no evidence that the Respondent, before receipt of anynotice of the dispute, has used the domain name or a name corresponding to thedomain name in connection with bona fide; or that the Respondent has beencommonly known by the domain name; or that the Respondent is making alegitimate noncommercial or fair use of the domain name. Furthermore, theRespondent has not provided evidence of any other circumstances giving rise toa right or legitimate interest in the domain name. Instead, in the letter tothe Center, the Respondent makes the promise that, if the settlement isreached, the disputed domain name should be returned to the owner to whom itshould have attached. As such, the Panel finds that the Respondent has no rightsor legitimate interests in respect of the disputed Domain Name.
Domain Name Registered and Used in Bad Faith
Paragraph 4(b) of the ICANNPolicy specifies four types of circumstances that could be evidence of theregistration and use of a domain name in bad faith. According to the ICANNPolicy, circumstances of bad faith are not limited to the listed ones.
The Panel finds that thedomain name was registered and used in bad faith based upon the followingreasons:
1) The Complainant isestablished in 1966 and its activities have spread over many countries andregions of the world. Its official Chinese name °∞ѕгЄџўQ“„∞l’єЊ÷°± is well known by relevant communitythroughout some countries and regions in Asia, especially in mainland China andHong Kong SAR. It is unconceivable that the Respondent residing in China andusing the very identical characters to register her domain name does not know thatthe Complainant is a big organization incorporated in Hong Kong. Therefore, thePanel infers that the Respondent was aware of the Complainant°ѓs legitimateinterest in its official Chinese name °∞ѕгЄџўQ“„∞l’єЊ÷°± when the Respondent obtained the domainname at issue.
2) The Complainant isa statutory body incorporated in Hong Kong SAR and has been using its officialEnglish name and Chinese name to perform its functions throughout the world beforethe creation of the disputed domain name. The Chinese character of the disputeddomain name is the official Chinese name of the Complainant. The panel is ofthe opinion that the domain name is a unique service. By common knowledge,using the Chinese wording °∞ѕгЄџўQ“„∞l’єЊ÷°± as the second level of a domain name can be a very direct, exact andpreferred way to reflect the Complainant°ѓs identity and its functions. TheRespondent°ѓs conduct of acquiring and holding the domain name [<ѕгЄџўQ“„∞l’єЊ÷.com> (BQ--3CMZS3RPRS7WME3WPROFKXCA.COM)] hasprevented the Complainant from reflecting its service mark in a correspondingdomain name.
3) The Respondent isneither the employee of the Complainant nor authorized person to register or tohold the disputed domain name on the latter°ѓs behalf. No evidence shows thatthe Respondent has any relationship with the Complainant. In fact, in theletter to the Center, the Respondent admits that she is not the proper holderof the disputed domain name. The domain name <ѕгЄџўQ“„∞l’єЊ÷.com> is so obviously connected with the Complainantand its services that its very use by someone with no connection with the Complainantsuggests opportunistic bad faith (see Deutsche Bank AG v. Diego-ArturoBruckner, Case No. D-2000-0277).
For the reasons above-mentioned, the Panel finds that the Respondent°ѓs registration and use ofthe domain name at issue is in bad faith.
The Panel concludes (a) thatthe domain name [<ѕгЄџўQ“„∞l’єЊ÷.com> (BQ--3CMZS3RPRS7WME3WPROFKXCA.COM)] is identical to theservice mark owned by the Complainant, (b) that the Respondent has no rights orlegitimate interest in the domain name and (c) that the Respondent hasregistered and used the domain name in bad faith. Therefore, the Panel ordersthat the domain name [<ѕгЄџўQ“„∞l’єЊ÷.com> (BQ--3CMZS3RPRS7WME3WPROFKXCA.COM)] be transferred to theComplainant.
Dated: May 2, 2001