Cable News Network, Inc. f/k/a Cable News Network LP, LLLP v. P.A. Ramsaroop
Claim Number: FA0805001190404
Complainant is Cable News Network, Inc. f/k/a Cable
News Network LP, LLLP (“Complainant”),
represented by W. Scott Creasman, of Taylor Busch Slipakoff & Duma, LLP, Georgia, USA. Respondent is P. A. Ramsaroop (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cnnhealth.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 14, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 14, 2008.
On May 14, 2008, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <cnnhealth.com> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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").
16, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 5, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 10, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
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 <cnnhealth.com> domain name is confusingly similar to Complainant’s CNN mark.
2. Respondent does not have any rights or legitimate interests in the <cnnhealth.com> domain name.
3. Respondent registered and used the <cnnhealth.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cable News Network, Inc. f/k/a Cable News Network LP, LLLP, is in the business of international media and entertainment. Complainant uses the CNN mark in association with this business and registered the CNN mark with the United States Patent and Trademark Office (“USPTO”) on May 22, 1990 (Reg. No. 1,597,839). Complainant also registered with the USPTO other marks with the distinguishable term CNN such as CNN IMAGESOURCE (Reg. No. 2,103,933 on October 7, 1996) and CNN AIRPORT NETWORK (Reg. No. 1, 922, 470 on September 26, 1995).
Respondent, P.A. Ramsaroop, registered the <cnnhealth.com> domain name on January 18, 2000, and uses the resolving website to display Complainant’s CNN mark and various third-party hyperlinks related to health and fitness.
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 Complainant has established sufficient rights by its registration with the USPTO of its CNN mark under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <cnnhealth.com> domain name incorporates Complainant’s entire CNN mark and adds the generic term “health,” which may be related to Complainant’s business of sharing information and news, including news related to health. The addition of the generic top-level domain name “.com” is irrelevant when determining if the disputed domain name is confusingly similar. The panel in Oki Data Americas, Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) stated that “the fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks.” Similarly, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s CNN mark pursuant to Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element).
The Panel finds that Policy ¶ 4(a)(i) has been met.
Initially, Complainant must make a prima facie case that Respondent lacks rights and legitimate interests in the <cnnhealth.com> domain name, thereafter the burden of proof shifts to Respondent. The presumption against Respondent is furthered by Respondent’s failure to respond to the Complaint. In G.D. Searle v. Martin Marketing., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) the panel found that “[b]ecause Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).” Therefore, after the Panel reviewed all of the evidence under Policy ¶ 4(c), the Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
The Panel infers that Respondent is receiving click-through fees for the hyperlinks displayed on the resolving website of the <cnnhealth.com> domain name. The Panel finds that such use does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use).
Finally, Complainant asserts that Respondent is not commonly known by the <cnnhealth.com> domain name based on the uncontested record and the WHOIS information that Respondent is registered as “P.A. Ramsaroop.” The panel in G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) found that “[d]ue to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.” Additionally, Complainant alleges that Respondent is not licensed or authorized to use Complainant’s CNN mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent is attempting to commercially benefit from the hyperlinks displayed on the resolving website of the disputed domain name by advertising health products and services, as well as displaying Complainant’s CNN mark. The panel in eBay, Inc v. Progressive Life Awareness Network, D2001-0068 (WIPO Mar. 16, 2001) found bad faith pursuant to Policy ¶ 4(b)(iv) where the respondent capitalized on the fame associated with the complainant’s EBAY mark and profited from it by diverting users seeking the complainant to the respondent’s website. Similarly, the Panel finds that Respondent’s capital gain from the confusingly similar <cnnhealth.com> domain name constitutes evidence that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
The Panel also finds that Respondent’s registration and use of a disputed domain name that is confusingly similar to Complainant’s CNN mark is likely to divert Internet users away from Complainant to unrelated websites, thus constituting bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii).
The Panel finds that Complainant has met Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cnnhealth.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 24, 2008
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