ABS-CBN International v. JAN PAUL MANCHING
Claim Number: FA1408001575590
Complainant is ABS-CBN International (“Complainant”), represented by Charlene L. Minx of Steptoe & Johnson LLP, California, USA. Respondent is JAN PAUL MANCHING (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abscbnlivestreaming.com>, registered with ENOM, 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 August 18, 2014; the National Arbitration Forum received payment on August 18, 2014.
On August 19, 2014, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <abscbnlivestreaming.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. 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 19, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 8, 2014 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@abscbnlivestreaming.com. Also on August 19, 2014, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 16, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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.
A. Complainant
1. Respondent’s <abscbnlivestreaming.com> domain name is confusingly similar to Complainant’s ABS-CBN mark.
2. Respondent does not have any rights or legitimate interests in the <abscbnlivestreaming.com> domain name.
3. Respondent registered and uses the <abscbnlivestreaming.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses its ABS-CBN mark in connection with a television broadcasting service. Complainant has registered the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,334,131 registered Mar. 28, 2000).
Respondent registered the <abscbnlivestreaming.com> domain name on February 2, 2014, and uses it to host illegal streams of Complainant’s programming.
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.”).
The Panel finds that Complainant’s USPTO registration for its ABS-CBN mark sufficiently proves its Policy ¶ 4(a)(i) rights in the mark. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <abscbnlivestreaming.com> domain name incorporates Complainant’s ABS-CBN mark and simply deletes the hyphen, and adds the descriptive term “live streaming” and the generic top-level domain (“gTLD”) “.com.” These alterations are not sufficient to distinguish the <abscbnlivestreaming.com> domain name from Complainant’s mark. See Google Inc. v. Private Person / Andrey Skorodubov, FA 1506184 (Nat. Arb. Forum Jul. 28, 2013) (finding that the disputed domain name is confusingly similar to the complainants mark regardless of the omission of a letter and spaces in the mark and the addition of hyphens, a descriptive term, and a gTLD); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 argues that Respondent is not commonly known by the <abscbnlivestreaming.com> domain name. The Panel notes that “JAN PAUL MANCHING” is listed as the registrant of record for the disputed domain name. In St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), the panel found that Policy ¶ 4(c)(ii) did not protect the respondent when nothing in the record illustrated that respondent had been known by the disputed domain name. The Panel finds that Policy ¶ 4(c)(ii) does not apply because Respondent has failed to provide any evidence suggesting that it is commonly known by the disputed domain name.
Complainant claims that the disputed domain name is being used to host illegal streaming of Complainant’s programming. The Panel notes that the <abscbnlivestreaming.com> domain name resolves to a website providing streams under the ABS-CBN mark. This use of the domain name is not a Policy ¶ 4(c)(i) bona fide offering of goods as the streams are broadcasted without Complainant’s permission, and thus there is no legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006) (concluding that the respondent’s use of a disputed domain name to operate a website promoting an illegal food supplement 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 Hewlett-Packard Co. v. Inversiones HP Milenium C.A., FA 105775 (Nat. Arb. Forum Apr. 12, 2002) (“Respondent’s use of the confusingly similar domain name [<hpmilenium.com>] to sell counterfeit versions of Complainant’s [HP] products is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s use of the <abscbnlivestreaming.com> domain name disrupts Complainant’s business because Respondent is providing illegal streams of Complainant’s content. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)). The Panel finds that Respondent disrupts Complainant’s business, which constitutes Policy ¶ 4(b)(iii) bad faith.
Complainant argues that Respondent is capitalizing on the likelihood that Internet users will confuse the content at the <abscbnlivestreaming.com> domain name with Complainant’s legitimate ABS-CBN network content. The Panel agrees and finds that Respondent’s streaming of Complainant’s content is a Policy ¶ 4(b)(iv) bad faith attempt to profit from the likelihood that Internet users will confuse Respondent with Complainant. See H-D Michigan, LLC v. Ross, FA 1250712 (Nat. Arb. Forum Apr. 23, 2009) (determining that the respondent’s selling of counterfeit products creates the likelihood of confusion as to the complainant’s affiliation with the disputed domain name and allows the respondent to profit from that confusion).
The Panel finds that 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 <abscbnlivestreaming.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 21, 2014
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