ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION The International Olympic Committee v. Fruit Li Case No. D2022-3713 1. The Parties Complainant is The International Olympic Committee, Switzerland, represented by Bird & Bird (Belgium) LLP, Belgium. Respondent is Fruit Li, Hong Kong, China. 2. The Domain Name and Registrar The disputed domain name
(the "Domain Name") is registered with GoDaddy.com, LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 5, 2022. On October 5, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 6, 2022, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent (Registration Private, Domains By Proxy, LLC) and contact information in the Complaint. The Center sent an email communication to Complainant on October 7, 2022, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on October 10, 2022. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 18, 2022. In accordance with the Rules, paragraph 5, the due date for Response was November 7, 2023. Respondent did not submit any formal response. However, an email communication was received on October 25, 2022 from Respondent, requesting for settlement. On October 28, 2022, the proceeding was suspended upon Complainant's request until November 28, 2022, and the suspension was extended further until December 28, 2022 upon Complainant's request. On page 2 December 27, 2022, Complainant informed the Center that there was no settlement reached between the Parties. Accordingly, the Center notified the Reinstitution of Proceeding on December 27, 2022, and confirmed the new Response due date was January 7, 2023. No further communication was received from Respondent. The Center notified the Commencement of Panel Appointment Process on January 9, 2023. The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on January 16, 2023. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background Complainant was founded in 1894 as an international, non-governmental, non-profit organization and since 1896, it has organized and conducted the Olympic Games. Complainant owns several registered trademark registrations for the OLYMPIC mark, including: - International Trademark registration number 1128501A for the OLYMPIC mark, registered on November 8, 2011, designating the European Union and a large number of other countries; and - International Trademark registration number 609691 for the OLYMPIC mark, registered on October 1, 1993, designating a large number of countries, including China and the Russian Federation. Complainant also owns an e-commerce website through the domain name , which it registered in 1995. Through this site, Olympic merchandise produced by licensees and suppliers appointed by Complainant and the Organizing Committee associated with each Olympic Games were sold. In October 2021, Complainant relaunched the Olympic shop via the domain name , by offering Olympic-branded merchandise from past, present and future Olympic and Paralympic Games. Complainant also owned , which referred to an e-commerce website between 2012 and 2019. In December 2018, Complainant launched an Olympic Store on Tmall, a Chinese online market place. The Domain Name was registered on February 9, 2019 and reverts to a website where alleged merchandise featuring the Olympic symbols and marks are offered for sale. 5. Parties' Contentions A. Complainant Complainant contends that (i) the Domain Name is identical or confusingly similar to Complainant's trademarks; (ii) Respondent has no rights or legitimate interests in the Domain Name; and (iii) Respondent registered and is using the Domain Name in bad faith. In particular, Complainant contends that it has trademark registrations for OLYMPIC and that Respondent registered and is using the Domain Name with the intention to confuse Internet users looking for bona fide and well-known OLYMPIC products and services. Complainant notes that it has no affiliation with Respondent, nor authorized Respondent to register or use a domain name, which includes Complainant's trademarks, and that Respondent has no rights or legitimate interests in the registration and use of the Domain Name. Rather, Complainant contends that Respondent has acted in bad faith in acquiring and setting up the Domain Name, when Respondent clearly knew of Complainant's rights. page 3 B. Respondent Apart from the email communication dated October 25, 2022 as mentioned in section 3, Respondent did not formally reply to Complainant's contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name was registered and is being used in bad faith. Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") states that failure to respond to the complainant's contentions would not by itself mean that the complainant is deemed to have prevailed; a respondent's default is not necessarily an admission that the complainant's claims are true. Thus, although in this case Respondent has failed to formally respond to the Complaint, the burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See, e.g., The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340. A. Identical or Confusingly Similar Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview 3.0, section 1.2.1. Complainant has provided evidence of its rights in the OLYMPIC trademarks, as noted above. Complainant has also submitted evidence, which supports that the OLYMPIC trademarks are widely known and a source identifier of Complainant's products and services. Complainant has therefore proven that it has the requisite rights in the OLYMPIC trademarks. With Complainant's rights in the OLYMPIC trademarks established, the remaining question under the first element of the Policy is whether the Domain Name, typically disregarding the Top-Level Domain ("TLD") in which it is registered (in this case, ".com"), is identical or confusingly similar to Complainant's trademark. See, e.g., B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. Here, the Domain Name is confusingly similar to Complainant's OLYMPIC trademarks. These trademarks are recognizable in the Domain Name. In particular, the Domain Name includes Complainant's trademark OLYMPIC in its entirety, with an addition of the term "gift" following the OLYMPIC mark in the Domain Name, which does not prevent a finding of confusing similarity between the Domain Name and the OLYMPIC trademarks. See WIPO Overview 3.0, section 1.8. Thus, the Panel finds that Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, a complainant must make a prima facie showing that a respondent possesses no rights or legitimate interests in a disputed domain name. See, e.g., Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once a complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always page 4 remains on the complainant. If the respondent fails to come forward with relevant evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP. From the record in this case, it is evident that Respondent was, and is, aware of Complainant and its OLYMPIC trademarks, and does not have any rights or legitimate interests in the Domain Name. Complainant has confirmed that Respondent is not affiliated with Complainant, or otherwise authorized or licensed to use the OLYMPIC trademarks or to seek registration of any domain name incorporating the OLYMPIC trademarks. Respondent is also not known to be associated with the OLYMPIC trademarks, and there is no evidence showing that Respondent has been commonly known by the Domain Name. In addition, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant asserts that the Domain Name resolves to a website that features merchandise bearing Complainant's OLYMPIC logos and marks, including prominently displaying Complainant's trademark OLYMPIC on goods. Complainant asserts that products such as clothing bearing Complainant's logos and trademarks are counterfeit, which has not been rebutted by Respondent. Further, the website does not prominently and accurately disclose the lack of relationship between Respondent and Complainant. Such use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use and cannot under the circumstances confer on Respondent any rights or legitimate interests in the Domain Name. See, e.g., Intesa Sanpaolo S.p.A. v. Charles Duke / Oneandone Private Registration, WIPO Case No. D2013-0875. See also Prada S.A. v. Domains For Life, WIPO Case No. D2004-1019; Advance Magazine Publishers Inc. v. Arena International Inc., WIPO Case No. D2011-0203. Accordingly, Complainant has provided evidence supporting its prima facie claim that Respondent lacks any rights or legitimate interests in the Domain Name. Respondent has failed to produce countervailing evidence of any rights or legitimate interests in the Domain Name. Moreover, the nature of the Domain Name carries a risk of an implied affiliation as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. See WIPO Overview 3.0, section 2.1.5. Thus, the Panel concludes that Respondent does not have any rights or legitimate interests in the Domain Name, and Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel finds that Respondent's actions indicate that Respondent registered and is using the Domain Name in bad faith. Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely: "(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or page 5 (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location." The Panel finds that Complainant provided ample evidence to show that registration and use of the OLYMPIC trademarks long predate the registration of the Domain Name. Complainant is also well established and known. Indeed, the record shows that Complainant's OLYMPIC trademarks and related products and services are widely known and recognized. Therefore, Respondent was likely aware of the OLYMPIC trademarks when it registered the Domain Name, or knew or should have known that the Domain Name was confusingly similar to Complainant's trademarks. See WIPO Overview 3.0, section 3.2.2; see also TTT Moneycorp Limited v. Privacy Gods / Privacy Gods Limited, WIPO Case No. D2016-1973. The Panel therefore finds that Respondent's awareness of Complainant's trademark rights at the time of registration suggests bad faith. See Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz, WIPO Case No. D2011-2209; Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org., and Pokemon Fans Unite, WIPO Case No. D2001-1070; BellSouth Intellectual Property Corporation v. Serena, Axel, WIPO Case No. D2006-0007. Further, the registration of the Domain Name incorporating Complainant's OLYMPIC trademark in its entirety suggests Respondent's actual knowledge of Complainant's rights in the OLYMPIC trademarks at the time of registration of the Domain Name and its effort to opportunistically capitalize on the registration and use of the Domain Name. Moreover, the addition of the term "gift" in the Domain Name after Complainant's trademark OLYMPIC directly evokes Complainant's activities in the field of sports souvenirs and related products, further indicating Respondent's actual knowledge of Complainant and its trademarks, and that Respondent's registration of the Domain Name was in bad faith. Moreover, Respondent registered and is using the Domain Name to confuse and mislead consumers looking for bona fide and well-known OLYMPIC products and services of Complainant or authorized partners of Complainant. The use of the OLYMPIC mark as the dominant part of the Domain Name is intended to capture Internet traffic from Internet users who are looking for Complainant's products and services. Such use and association of the Domain Name to divert users to a webpage that appears to offer counterfeit merchandise, could result in causing confusion with Complainant's business activities. It may confuse Internet users who are looking for Complainant's legitimate website and deceive Internet users into thinking that Respondent is somehow connected to Complainant, which is not the case. In addition, Respondent's website also provides the opportunity for Internet users to provide personal data, which may result in use of such data for malicious or fraudulent purposes. The addition of the term "gift" in the Domain Name only causes further confusion to consumers, as it alludes to souvenirs or free items related to the Olympic program or business activities. Finally, the Panel also notes the reputation of the OLYMPIC trademarks, Respondent's use of a privacy service, the failure of Respondent to submit a response or to provide any evidence of actual or contemplated good faith use, and the implausibility of any good faith use to which the Domain Name may be put. Accordingly, the Panel finds that Respondent has registered and is using the Domain Name in bad faith and Complainant succeeds under the third element of paragraph 4(a) of the Policy. page 6 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to Complainant. /Kimberley Chen Nobles/ Kimberley Chen Nobles Sole Panelist Date: January 27, 2023
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