ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The Complainant is Huangshan Tourism Development Co., Ltd of Huangshan city, Anhui Province, PR of China. The Respondent is NA Global Link Limited of Hong Kong, PR of China. The contested domain name is huangshan.com.
2. Procedural History
The electronic version of the Complaint form was filed on-line through eResolution's Website on April 29, 2000. The hardcopy of the Complaint Form was received on May 10, 2000. Payment was received on May 11, 2000.
Upon receiving all the required information, eResolution's clerk proceeded to:
- Confirm the identity of the Registrar for the contested Domain Name;
- Verify the Registrar's Whois Database and confirm all the required contact information for Respondent;
- Verify if the contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.
The inquiry leads the Clerk's Office of eResolution to the following conclusions: the Registrar is The Name It Corp., the Whois database contains all the required contact information but the billing contact, the contested Domain Name resolves to an inactive Web page and the Complaint is administratively compliant.
An email was sent to the Registrar by eResolution Clerk's Office to confirm the name of the billing contact and to obtain a copy of the Registration Agreement on May 12, 2000. The requested information was received May 16, 2000.
The Clerk's Office then proceeded to send a copy of the Complaint Form and the required Cover Sheet in accordance with paragraph 2 (a) of the ICANN's Rules for Uniform Domain Name Dispute Resolution Policy.
The Clerk's Office fulfilled all its responsibilities under Paragraph 2(a) in connection with forwarding the Complaint to the Respondent on May 12, 2000. That date is the commencement date of the administrative proceeding.
On May 12, 2000, the Clerk's Office notified the Complainant, the Respondent, the concerned Registrar, and ICANN of the date of commencement of the administrative proceeding.
On May 31, 2000, the Respondent submitted, via eResolution internet site, his response. The signed version of the response was received on June 6, 2000.
On June 13, 2000, the Clerk's Office contacted Mr. Li Yong, and requested that he acts as panelist in this case.
On June 20, 2000, Mr. Li Yong accepted to act as panelist in this case. On June 22, Mr. Li Yong filed the necessary Declaration of Independence and Impartiality.
On June 22, 2000, the Clerk's Office forwarded a user name and a password to Mr. Li Yong allowing him to access the Complaint Form, the Response Form, and the evidence through eResolution's Automated Docket Management System.
On June 22, 2000, the parties were notified that Mr. Li Yong had been appointed and that a decision was to be, save exceptional circumstances, handed down on July 5, 2000.
3. Factual Background
Complainant is a registered corporation in China with a number of registered subsidiary companies .All of the corporation and companies are located in Huangshan City of Anhui Province in China and have characters "huangshan"as part of their company names. The services provided and products sold by Complainant are directly related to tourism, travel and accommodation in the Huangshan City region. Complainant is the holder of five domain names: www.huangshantourism.com, www.huangshantravel.com, www.hstd.com, www.huangshanvisiting.com, www.huangshanjourney.com.
Respondent registered the domain name www.huangshan.com with the registrar THE NAME IT CORP. on Mar. 21, 2000.
4. Parties' Contentions
Complainant contends that :
(1) The domain name at issue and Huangshan Tourism Development Co. Ltd are very closely related not only in the similarity of the names, but also because Complainant has used the domain name for the last two years. The domain name could be easily confused with the company. Early in 2000, Complainant's representative should have made a payment to renew the registration of the domain name. The payment was not made, and so the domain name was registedred by someone else.
(2) NA Global link Co., Ltd does not appear to have any business interests involving Huangshan. NA Global Link Co., Ltd is not using the domain name for any legitimate and useful purposed right now and it seems that it will not do so in the future.
(3) The pattern of conduct of NA Global Link Co., Ltd indicates that the domain name has been registered in order to prevent Complainant from reflecting its service mark in www.huangshan.com.
(4) Whenever Complainat have tried to contact NA Global Link Co., Ltd by phone, by fax and by email, there has been no response. This shows that the company has violated the conditions of domain name registration and is using the domain name in bad faith.
Respondent argued that :
(1)Complainant does not have any trademark on huangshan or similar words.
(2)Complainant does not offer any service with service mark identical to Huangshan. Complainant is commonly referred as 'hstd'or 'Huangshan Tourism'and these are the common service mark of complainant.
(3)Complainant owns 9 companies with huangshan as part of the company name, but Huangshan.com is not identical to or confusingly similar to any of these company names.
(4)According to NSI Service Agreement and ICANN Registrar Accreditation Agreement, complainant lost its rights on huangshan.com at the moment when its registration is deleted and becomes available for registration by other parties.
(5)Respondent is not using the domain name because it is now in the planing and design phase of development.
(6)The fact the complainant's phone, fax, or emails were not responded proves that respondent does not have any idea, intention, or action of selling the domain name to Complainant or any other parties.
(7)Mountain Huangshan was given its present mame in 747 A.D. Many companies use Huangshan as a part of their company names or domain names. No one has the exclusive rights to use the word huangshan in Internet as well as in company names and service names.
5. Discussion and Findings
In accordance with ICANN Policy, Complainant asking for transfer of the domain name must prove the following three elements: (i) Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) Respondent has no rights or legitimate interests in the domain name; and (iii) Respondent has registered the domain name and is using it in bad faith. (ICANN policy, para. 4 (a)).
With respect to the first element, the panel cannot find evidence to prove that Complainant owns registered trade mark or registered service mark on 'huangshan'or 'huangshan.com'. What the panel could see from the Complaint and the annexed documents is that the Complainant is a legal entity registered with the competent authority in Anhui Province in China and is having the company name 'Huangshan Tourism Development Co., Ltd'. Complainant has a right to prevent others from using this company name in a law-stipulated area, but does not have exclusive right of trade mark or service mark on the name. Further, the panel believes that 'huangshan.com'is neither identical nor confusingly similar to the company name 'Huangshan Tourism Development Co., Ltd'. 'Huangshan'in the mind of ordinary people means a very beautiful mountain rather than a particular company or mark. Besides, the word 'huangshan'is only a relatively small part of the whole company name. People can easily make identification between the domain name and the company name.
In addition, it comes to the panel's attention that Complainant registered its company name in Chinese characters form instead of in English character form or in Chinese Pin Yin symbol form. The word'huangshan'in fact is the Chinese Pin Yin symbols for the pronunciation of Chinese characters for the famous mountain located in Anhui Province of China. This can be seen in Annexes of the Complaint, i.e., the Legal Entity Business Certificate No. 3400001300017. The Chinese name of the company looks very different than the domain name 'huangshan.com'which is in English character form. The panel has noticed that the Complainant's contention that the domain name and the company name are very closely related also because Complainant has used the domain name for last two years. The panel believes that this argument has little effect to prove that the 'identical or confusingly similar criterion' is met although it might be used to challenge Respondent's purpose of registering the domain name. Therefore, the requirement of the first element is not met.
According to ICANN Policy, para. 4 (a ), the Complainant must prove that each of the three elements are present in order to prevail. Because of the above discussion, the panel thinks that it is not necessary to make judgement on whether the Respondent has rights or legitimate interests in the domain name, and whether it has registered the domain name and is using it in bad faith. Even if Complainant proves that the 'no rights or legitimate interests' and the 'bad faith'criteria are met in this case, the remedy provided by ICANN Policy administrative proceeding could not be obtained.
For the reasons stated above, the panel concludes that Complainant fails to prove that it has registered trade mark or registered service mark, and that although Complainant owns a registered company name in China, the domain name at issue is neither identical nor confussily similar to the company name, and that it is unnecessary to analyse the second and third elememts of ICANN Policy, para. 4 (a). Therefore, the panel rejects the Complaint.
Signed this 3d day of July 2000 by the lead panelist
(s) Li Yong