Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Monarch Import Company, USA ("Complainant") represented by Kevin C Trock, Laff, Whitesel & Saret Ltd. The Respondent is Jinlong Xu, Draper, UT, USA ("Respondent").

The domain name at issue is tsingtaobeer.com registered with Network Solutions.

The Panelist certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as the panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on October 10, 2000; The Forum received a hard copy of the Complaint on October 16, 2000.

On October 16, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name tsingtaobeer.com is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On November 6, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 27, 2000 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@tsingtaobeer.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On December 5, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Judge Harold Kalina (Ret.) as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Uniform 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 Forum’s Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

Respondent did not submit a response in this matter.

The Rules for Uniform Domain Name Dispute Resolution Policy ("ICANN Rules") state the following with regard to default cases:

ICANN Rules 14. Therefore, at the direction of the rules, this panelist will proceed to a decision based on the evidence presented, and will infer that the averments in the complaint are true. See 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 ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

The domain name at issue is confusingly similar to Complainat’s federally registered trademark. The evidence indicates that Complainant holds federal trademark registrations for TSINGTAO and TSINGTAO BEER in the United States. This confers sufficient rights under the ICANN Policy.

If not for the presence of ‘.com’ the domain name tsingtaobeer.com would be identical to Complainant’s mark. Several UDRP decisions have instructed that for the purposes of considering whether a domain name is identical or confusingly similar, a TLD or space between words may be ignored. See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding that the ".com" is part of the Internet address and does not add source identity significance").

Therefore, this Panelist concludes that the domain name is, at the least, confusingly similar to the marks in which Complainant has rights.

Respondent may demonstrate its rights or legitimate interests in a domain name by providing evidence of any of the following:

Respondent has failed to provide any evidence from which this Panelist could determine that Respondent has any rights or legitimate interest in the domain name at issue. Therefore, this Panelist must conclude that Respondent has no such rights under the ICANN Policy. See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because the Respondent never submitted a response nor provided the panel with evidence to suggest otherwise).

A panel may consider any evidence of bad faith, including, without limitation, the specific circumstances outlined in the ICANN Policy. In this situation, this Panelist determines that Respondent has acted in bad faith, in registering and passively holding the domain name at issue.

First, this panelist acknowledges that Respondent registered the domain name with actual or constructive knowledge of Complainant’s mark. See CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding bad faith where Respondent failed to provide any evidence to controvert Complainant's allegation that it registered the domain name in bad faith and where any future use of the domain name would do nothing but cause confusion with the Complainant’s mark) By doing so, Respondent violated ICANN Policy 2(b) which requires a Respondent, when registering a domain name, to state that "to your [Respondent’s] knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party. This panel finds that the domain name does infringe.

The only apparent reason for Respondent’s registration of a domain name so similar to Complainant’s mark is to reap a financial award from his activities. The evidence indicates that Respondent has no plans to use the domain in any bona fide offering, and Respondent is willing to transfer the domain name for a fee. This indicates that Respondent registered 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." There is no other explanation for Respondent’s conduct. See Household International, Inc. v. Cyntom Enterprises, FA95784 (NAF Nov. 7, 2000) ("Just as the employment of a well-known business name for no particularly good reason undermines any claim to legitimate interest, so it may also support an inference of a bad-faith attempt to use the name to harass or exploit its legitimate owner. See also Cruzeiro Licenciamentos Ltda v. Sallen and Sallen Enterprises, D2000-0715 (WIPO Sept. 6, 2000) (finding that mere passive holding of a domain name can qualify as bad faith if the domain name owner’s conduct creates the impression that the name is for sale).

For the foregoing reasons, this Panelist determines that the requested relief be granted. Accordingly, it is ordered that the domain name tsingtaobeer.com be transferred from Respondent to Complainant.