Cable News Network, Inc. f/k/a Cable News Network, LP, LLLP v. Yunkook Jung
Claim Number: FA1006001331737
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 <cnntech.com>, registered with Korea Information Certificate Authority, Inc. d/b/a DomainCA.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 24, 2010.
On June 28, 2010, Korea Information Certificate Authority, Inc. d/b/a DomainCA.com confirmed by e-mail to the National Arbitration Forum that the <cnntech.com> domain name is registered with Korea Information Certificate Authority, Inc. d/b/a DomainCA.com and that Respondent is the current registrant of the name. Korea Information Certificate Authority, Inc. d/b/a DomainCA.com has verified that Respondent is bound by the Korea Information Certificate Authority, Inc. d/b/a DomainCA.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").
On July 1, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 21, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@cnntech.com. Also on July 1, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 23, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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" through submission of a Written Notice, as defined in Rule 1. 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 <cnntech.com> domain name is confusingly similar to Complainant’s CNN mark.
2. Respondent does not have any rights or legitimate interests in the <cnntech.com> domain name.
3. Respondent registered and used the <cnntech.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 an international media and entertainment company. Complainant also provides technology news and information via the “CNN Tech” section of its official website, <cnn.com>. In addition, Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CNN mark (e.g., Reg. No. 1,597,839 registered on May 22, 1990).
Respondent, Yunkook Jung, registered the <cnntech.com> domain name on February 14, 2008. Respondent’s disputed domain name resolves to a website that displays links to third-party websites that are unrelated to Complainant.
Complainant offers evidence that Respondent has a history of registering domain names that infringe upon the trademark rights of others and has been ordered by previous UDRP panels to transfer the disputed domain names to the respective complainants. E.g., Google Inc. v. Yunkook Jung, FA 139101 (Nat. Arb. Forum Mar. 6, 2008); Sinclairestyle S.r.l. v. Jung Yunkook, D2008-1691 (WIPO Feb. 2, 2009).
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.
Complainant asserts rights in the CNN mark through its numerous registrations of the mark with the USPTO (e.g., Reg. No. 1,597,839 registered on May 22, 1990). The Panel finds these registrations sufficiently establish Complainant’s rights in the CNN mark pursuant to Policy ¶ 4(a)(i). 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant alleges the <cnntech.com> domain name is confusingly similar to its CNN mark. Respondent replicates Complainant’s mark in its entirety in the disputed domain name. Respondent then adds the descriptive term, “tech,” and the generic top-level domain (“gTLD”) “.com” to Complainant’s mark in the disputed domain name. The Panel finds these additions do not sufficiently distinguish Respondent’s domain name from Complainant’s mark. See American Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”) Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel finds Respondent’s <cnntech.com> domain name is confusingly similar Complainant’s CNN mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first show Respondent lacks rights and legitimate interests in the <cnntech.com> domain name under Policy ¶ 4(a)(ii). After Complainant makes this prima facie case, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. Respondent’s failure to submit a Response constitutes evidence that Respondent lacks rights or legitimate interests in the domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also American 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.”). Despite Respondent’s failure to respond, the Panel will review the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant states it has never authorized or licensed Respondent to use its CNN mark in a domain name. Furthermore, the WHOIS information lists “Yunkook Jung” as the registrant of the <cnntech.com> domain name. Based on the evidence in the record, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant provides screen shots of the website that resolves from the disputed domain name. These images show a website that lists numerous links to third-party websites unrelated to Complainant. Complainant avers Respondent profits from this use through the receipt of click-through fees and the Panel agrees. Accordingly, the Panel finds Respondent’s use of the <cnntech.com> domain name presumably to profit from click-through fees does not qualify as 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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 Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has been subject to numerous UDRP proceedings, wherein the disputed domain names were ordered to be transferred from Respondent to the respective complainants in those cases. E.g., Google Inc. v. Yunkook Jung, FA 139101 (Nat. Arb. Forum Mar. 6, 2008); Sinclairestyle S.r.l. v. Jung Yunkook, D2008-1691 (WIPO Feb. 2, 2009). The Panel finds that Respondent has engaged in a pattern of bad faith registration and use under the Policy ¶ 4(b)(ii). See Arai Helmet Am., Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another Policy proceeding against the respondent to find that “this is part of a pattern of such registrations”); see also Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been the subject of numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Finally, the Panel finds Respondent registered a domain name
that is confusingly similar to Complainant’s CNN mark so that it could profit
from click-through fees. Therefore, the
Panel concludes Respondent intentionally attempted to attract, for commercial
gain, Internet users to its website, by creating a likelihood of confusion with
the Complainant’s mark as to the source, sponsorship, affiliation, or
endorsement of Respondent’s website.
Consequently, the Panel finds Respondent registered and uses the <cnntech.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See
Association of Junior Leagues Int’l Inc. v. This Domain Name My Be For
The Panel finds Complainant has satisfied 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 <cnntech.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: July 28, 2010
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