World Wrestling Entertainment, Inc. v. anass atef abdelghany
Claim Number: FA1208001458693
Complainant is World Wrestling Entertainment, Inc. (“Complainant”), represented by Matthew C. Winterroth of World Wrestling Entertainment, Inc., Connecticut, USA. Respondent is anass atef abdelghany (“Respondent”), Egypt.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwearab.com>, registered with Name.com LLC.
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.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 17, 2012; the National Arbitration Forum received payment on August 20, 2012.
On August 17, 2012, Name.com LLC confirmed by e-mail to the National Arbitration Forum that the <wwearab.com> domain name is registered with Name.com LLC and that Respondent is the current registrant of the name. Name.com LLC has verified that Respondent is bound by the Name.com LLC 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 August 22, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 11, 2012 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@wwearab.com. Also on August 22, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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.
On August 27, 2012, the forum received two emails from Respondent. The emails were not in compliance with ICANN Rule #5(a) and/or the Annex to the Supplemental Rules and were not considered by the Panel.
Having received no sufficient response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 18, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (Ret.), 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
I. Complainant alleges:
a. Complainant is an integrated media organization and a provider of global entertainment under the WWE mark.
b. Complainant owns trademark registrations for the WWE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,772,683 registered October 7, 2003) and Egypt’s Trademark and Industrial Designs Office (“TIDO”) (Reg. No. 151,827 registered June 12, 2002).
c. The <wwearab.com> domain name is confusingly similar to Complainant’s WWE mark.
d. Respondent is not known by the <wwearab.com> domain name because Respondent is not connected to Complainant, does not own a license to use Complainant’s mark, and is not sponsored or endorsed by Complainant.
e. Respondent’s website resolving from the <wwearab.com> domain name incorporates Complainant’s WWE mark and provides hyperlinks to live, televised, and pay-per-view content that Respondent does not have authorization to offer or display.
f. Respondent receives pay-per-click advertising fees from the listed hyperlinks.
g. Respondent intentionally attempts to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with Complainant’s WWE marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
II. Respondent did not submit a compliant Response.
For the reasons set forth below, the panel finds Complainant is entitled to the relief requested.
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."
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.
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.”).
Complainant argues that Complainant provides global entertainment under the WWE mark. Complainant asserts that it owns trademark registrations for the WWE mark with the USPTO (e.g., Reg. No. 2,772,683 registered October 7, 2003) and the TIDO (Reg. No. 151,827 registered June 12, 2002). In light of these trademark registrations, the Panel holds that Complainant owns rights in the WWE mark pursuant to Policy ¶ 4(a)(i). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)).
Complainant alleges that the <wwearab.com> domain name is confusingly similar to Complainant’s WWE mark. Complainant contends that Respondent simply combines the WWE mark with the generic term “arab.” Complainant argues that the addition of this term to Complainant’s mark does not create a distinct mark separate from Complainant’s mark. The Panel agrees. See Am. 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)). The <wwearab.com> domain name contains the generic top-level domain (“gTLD”) “.com,” which the Panel determines is irrelevant to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Consequently, the Panel finds that Respondent’s <wwearab.com> domain name is confusingly similar to Complainant’s WWE mark according to Policy ¶ 4(a)(i).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent is not known by the <wwearab.com> domain name. Complainant alleges that Respondent is not connected to Complainant, does not own a license to use Complainant’s WWE mark, and is not sponsored or endorsed by Complainant. Respondent did not file a compliant Response to refute these claims. The WHOIS information, which identifies the disputed domain name registrant as “anass atef abdelghany,” does not indicate that Respondent is known by the disputed domain name. Based on the evidence in the record, the Panel concludes that, for the purpose of Policy ¶ 4(c)(ii), Respondent is not commonly known by the <wwearab.com> domain name. See 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 Respondent’s website resolving from the <wwearab.com> domain name incorporates Complainant’s WWE mark and provides hyperlinks to live, televised, and pay-per-view content that Respondent does not have authorization to offer or display. The Panel finds that, as the providers of Complainant’s entertainment services on the websites resolving from the hyperlinks are not authorized to provide these services, the hyperlinks are considered as competing hyperlinks. Complainant argues that Respondent receives pay-per-click advertising fees from the listed hyperlinks. Therefore, the Panel determines that Respondent’s provision of competing hyperlinks on the resolving website is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <wwearab.com> domain name. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
Complainant has proven this element.
Complainant asserts that Respondent’s <wwearab.com> domain name incorporates Complainant’s WWE mark and provides competing hyperlinks to live, televised, and pay-per-view content that Respondent does not have authorization to offer or display. Complainant argues that Respondent receives pay-per-click advertising fees from the listed hyperlinks. Based on this resolving website, Complainant contends that Respondent intentionally attempts to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with Complainant’s WWE marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. The Panel determines that Respondent commercially benefits from the pay-per-click fees and that Internet users may believe Complainant is associated with the <wwearab.com> domain name based on Respondent’s use of the WWE mark and the hyperlinks for Complainant’s video content. The Panel holds that Respondent registered and uses the <wwearab.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwearab.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: September 24, 2012
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