Cable News Network, Inc. f/k/a Cable News Network LP, LLLP v. Forum LLC
Claim Number: FA0802001143721
Complainant is Cable News Network, Inc. f/k/a Cable
News Network LP, LLLP (“Complainant”),
represented by Emily S. Mechem, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cnnexchange.com>, registered with Moniker Online Services, Inc.
The undersigned 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 Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 11, 2008.
On February 11, 2008, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <cnnexchange.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. 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 February 13, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 4, 2008 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@cnnexchange.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cnnexchange.com> domain name is confusingly similar to Complainant’s CNN mark
2. Respondent does not have any rights or legitimate interests in the <cnnexchange.com> domain name.
3. Respondent registered and used the <cnnexchange.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cable News Network, Inc.,
is an international media and entertainment company. For over 20 years, Complainant has used the
CNN mark to identify its news and information services. Complainant registered the CNN mark with the
United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,597,839, issued
May 22, 1990). Complainant has also
filed a service mark application with the USPTO to register CNN EXCHANGE (Ser.
No. 78/850,870, filed
Respondent registered the disputed domain name on July 31, 2006. The <cnnexchange.com> domain name currently resolves to a website hosting unrelated third-party links.
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, 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 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 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.
The Panel finds that the registration of the CNN mark with
the USPTO establishes rights in the mark. Based on a Policy ¶ 4(a)(i)
analysis, the Panel finds Complainant has established rights in the CNN mark. See Expedia,
Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s]
mark is registered with the USPTO, [the] complainant has met the requirements
of Policy ¶ 4(a)(i).”); see also Intel Corp. v.
Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006)
(finding that the complainant had established rights in the PENTIUM, CENTRINO
and INTEL INSIDE marks by registering the marks with the USPTO).
Respondent’s disputed domain name is confusingly similar to
the service mark in which Complainant has rights. The addition of the generic term “exchange,”
and the addition of the generic top-level domain “.com” are irrelevant in a
Policy ¶ 4(a)(i) analysis. The Panel finds that the <cnnexchange.com> domain name is confusingly
similar to the CNN mark held by Complainant.
See Arthur Guinness Son & Co. (
The Panel finds that the Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the <cnnexchange.com> domain name. Complainant has the burden of proof pursuant to Policy ¶ 4(a)(ii). Once Complainant has made a prima facie showing, the burden of proof shifts to Respondent. The Panel finds the Complainant has met its burden. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to respond to the Complaint allows the Panel to assume the Respondent has no rights or legitimate interests in the <cnnexchange.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”). Nonetheless, the Panel will examine the record to determine if any rights or legitimate interests exist under Policy ¶ 4(a)(ii).
Respondent is not commonly known by the <cnnexchange.com> domain name pursuant to Policy ¶ 4(c)(ii). The record
contains nothing to suggest Respondent is commonly known by disputed domain
name. The WHOIS information identifies
the Respondent as “Forum LLC” with no reference to the <cnnexchange.com> domain name. Respondent is in no way licensed or authorized to use the CNN mark.
The Panel finds that the Respondent has no rights or legitimate
interests to the <cnnexchange.com> domain name under Policy 4 ¶ (c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb.
10, 2003) (stating “nothing in Respondent’s WHOIS information implies that
Respondent is ‘commonly known by’ the disputed domain name” as one factor in
determining that Policy ¶ 4(c)(ii) does not apply); see also Ian
Schrager Hotels, L.L.C. v. Taylor, FA
173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable
evidence to support the assertion that a respondent is commonly known by a
domain name, the assertion must be rejected).
The <cnnexchange.com> domain name resolves to a website containing links to unrelated third-party websites. The Panel presumes that Respondent is using the domain name for monetary gain, by capitalizing on the reputation of Complainant’s mark. The Panel finds this is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use under Policy ¶ 4(c)(iii). See Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
The Panel finds that the Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of <cnnexchange.com> domain name, which is confusingly similar to Complainant’s CNN mark, is likely to cause confusion to customers searching for Complainant’s services. There may be confusion regarding Complainant’s affiliation, endorsement, or sponsorship of the links advertised on Respondent’s website. The Panel assumes Respondent is commercially benefiting from this confusion, and concludes that the use of the <cnnexchange.com> domain name constitutes bad faith under Policy ¶ 4(b)(iv). See Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because the respondent's sole purpose in selecting the domain names was to cause confusion with the complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use); see also Bank of Am. Corp. v. Out Island Props., Inc., FA 154531 (Nat. Arb. Forum June 3, 2003) (stating that “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website” in holding that the domain names were registered and used in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that the 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 <cnnexchange.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 20, 2008
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