Cable News Network, Inc. f/k/a Cable News Network, LP, LLP v. xiongyiyao / xiongyi, yao
Claim Number: FA1101001366085
Complainant is Cable News Network, Inc. f/k/a Cable News Network, LP, LLP (“Complainant”), represented by Emily S. Mechem of Arent Fox, LLP, Washington, D.C., USA. Respondent is xiongyiyao / xiongyi, yao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cnnchinese.com>, registered with HICHINA ZHICHENG TECHNOLOGY LTD.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 4, 2011; the National Arbitration Forum received payment on January 4, 2011. The Complaint was submitted in both the Chinese and English languages.
On January 5, 2011, HICHINA ZHICHENG TECHNOLOGY LTD. confirmed by e-mail to the National Arbitration Forum that the <cnnchinese.com> domain name is registered with HICHINA ZHICHENG TECHNOLOGY LTD. and that Respondent is the current registrant of the name. HICHINA ZHICHENG TECHNOLOGY LTD. has verified that Respondent is bound by the HICHINA ZHICHENG TECHNOLOGY LTD. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 14, 2011, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of February 3, 2011 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@cnnchinese.com. Also on January 14, 2011, the Chinese language 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 February 8, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cnnchinese.com> domain name is confusingly similar to Complainant’s CNN mark.
2. Respondent does not have any rights or legitimate interests in the <cnnchinese.com> domain name.
3. Respondent registered and used the <cnnchinese.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, LLP, is an international media and entertainment company that has provided twenty-four hour a day news coverage under its CNN mark for more than 20 years. Complainant owns numerous trademark registrations for its CNN mark worldwide, including those with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,597,839 issued May 22, 1990) and the Chinese State Intellectual Property Office (“SIPO”) (e.g., Reg. No. 4,338,695 issued November 30, 1991).
Respondent, xiongyiyao / xiongyi, yao, registered the <cnnchinese.com> domain name on October 25, 2001. Respondent’s disputed domain name resolves to two different websites from time to time. One such website appears to be a personal blog with pictures and third-party links to commercial websites. At other times the disputed domain name redirects to a commercial website located at <kit.hichina.com>.
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 presented sufficient evidence to demonstrate its rights in the CNN mark under Policy ¶ 4(a)(i), through its numerous trademark registrations with the USPTO (e.g., Reg. No. 1,597,839 issued May 22, 1990) and SIPO (e.g., Reg. No. 4,338,695 issued November 30, 1991). 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 Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Complainant contends that Respondent’s <cnnchinese.com> domain name is confusingly similar to Complainant’s CNN mark. Complainant notes that the disputed domain name contains its entire CNN mark while merely adding the geographic or descriptive term “chinese” and the generic top-level domain (“gTLD”) “.com.” The Panel agrees and finds that Respondent’s disputed domain name is confusingly similar to Complainant’s CNN mark under Policy ¶ 4(a)(i). See AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000) (finding that the <axachinaregion.com> domain name “is confusingly similar to the Complainant's trade mark ‘AXA’” because “common geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights”); see also 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).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has contended that Respondent does not have any rights or legitimate interests in the <cnnchinese.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complaint argues that Respondent is neither commonly known by the <cnnchinese.com> domain name, nor has Complainant given Respondent permission to use Complainant’s mark. The WHOIS information identifies “Xiongyiyao/Xiongyi, yao” as the registrant of the <cnnchinese.com> domain name, and there is no further evidence on record that Respondent is commonly known by the disputed domain name. The Panel finds that without evidence of Respondent being commonly known by the disputed domain name, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to 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 Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant contends that the disputed domain name resolves to two different websites intermittently. One such website appears to be a personal blog that contains family photographs as well as links to third-party commercial websites. Complainant contends that such use leads to the inference that Respondent is collecting click-through fees from the websites linked-to on its website. Complainant also argues that such use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. The Panel agrees and finds that Respondent’s use of the disputed domain name to resolve to a website that appears to be a personal blog site that also contains third-party links to various websites is 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 Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Further, Complainant contends that when Respondent’s domain name is not resolving to the blog site mentioned above, the domain name resolves to a commercial website located at <kit.hichina.com>. Complainant argues that such redirection to a commercial website is neither a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. The Panel agrees and finds that Respondent’s use of the domain name to redirect Internet users to a third-party commercial website, presumably for financial gain, is 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 WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent registered and is using the disputed domain name in bad faith by intentionally attempting to attract Internet users to its website for commercial gain by creating a likelihood of confusion between the disputed domain name and Complainant’s mark. Complainant contends that when the disputed domain name resolves to the blog website, such website also displays various third-party links to companies unrelated to Complainant. Complainant argues that such use allows Respondent to collect click-through or affiliate fees from the businesses that have links on Respondent’s site. The Panel finds that Respondent’s use of the disputed domain name to operate a blog website that also contains various third-party links to unrelated companies is evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (holding that the respondent was taking advantage of the confusing similarity between the <lilpunk.com> domain name and the complainant’s LIL PUNK mark by using the contested domain name to maintain a website with various links to third-party websites unrelated to Complainant, and that such use for the respondent’s own commercial gain demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Further, Complainant argues that Respondent receives commercial compensation when the disputed domain name redirects Internet users to the third-party website located at <kit.hichina.com>. Complainant argues that such use is further evidence of Respondent’s bad faith registration and use. The Panel agrees and finds that Respondent’s use of the disputed domain name to redirect Internet users to a third-party website, presumably for Respondent’s commercial gain, is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Hancock Fabrics, Inc. v. Active Advantage, Inc., FA 204111 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent’s use of the <hancockfabric.com> domain name, a domain name confusingly similar to Complainant’s HANCOCK FABRICS mark, to redirect Internet traffic to a website that provides a selection of jokes demonstrates Respondent’ bad faith use of the disputed domain name because Respondent has created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website, which evidences bad faith registration and use under Policy ¶ 4(b)(iv).”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <cnnchinese.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: February 10, 2011
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