Claim Number: FA1603001665112
Complainant is Academy of Television Arts & Sciences; National Academy of Television Arts & Sciences (“Complainant”), represented by Margaret A. Esquenet of Finnegan, Henderson, Farabow, Garret & Dunner, L.L.P., District of Columbia, USA. Respondent is Xiao Dong Rui (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <emmy.club>, registered with Chengdu West Dimension Digital Technology Co., Ltd..
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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 11, 2016; the Forum received payment on March 11, 2016. The Complaint was received in both Chinese and English.
On March 14, 2016, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <emmy.club> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., 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 March 15, 2016, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 4, 2016 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@emmy.club. Also on March 15, 2016, the Chinese language 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.
A timely Chinese language Response was received and determined to be complete on April 4, 2016.
On April 8, 2016 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes as Panelist.
A timely English and Chinese language Additional Submission was received from Complainant on April 11, 2016.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the owner of US federal registration No. 1,223,363 for the trademark EMMY (the “Trademark”) with a filing date of August 6, 1979. Complainant also asserts common law rights by virtue of its use of the Trademark continuously since 1948.
The domain name comprises the Trademark in its entirety.
Respondent has no rights or legitimate interests in the domain name, which has been used in respect of several different English language pay-per-click websites (the “Websites”) providing sponsored links to third party websites. The domain name has also previously been offered for sale for US$9,999 as evidenced by a prior WHOIS search for the disputed domain name.
Accordingly, the domain name has been registered and used in bad faith.
B. Respondent
Respondent asserts that Complainant has no intellectual property rights in respect of the domain name, which was registered on December 15, 2015.
Respondent claims that it is the legally registered owner of the domain name. Respondent also puts forward an entertaining submission in order to assert rights or legitimate interests and deny bad faith registration and use. Respondent claims his English name is “Jimmy”, his wife’s English name is “Tammy”, his child’s name is “Amy”, and, therefore, the domain name comprising “Emmy” was chosen by Respondent for family consistency, as it is similar phonetically to “Amy”, and in order to be used in future in respect of a proposed personalized website for Respondent’s daughter.
Respondent has adduced no evidence to support these assertions.
Complainant has established all the elements entitling it to transfer of the domain name.
The language of the registration agreement is Chinese. Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by the Complainant to suggest the likely possibility that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
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.
The domain name is identical to the Trademark.
There is no evidence that Complainant has authorised, licensed, or permitted Respondent to register or use the domain name or to use the Trademark. Complainant has prior rights in the Trademark which incidentally precede Respondent’s registration of the domain name by many years. The Panel finds on the record that there is therefore a prima facie case that Respondent has no rights or legitimate interests in the domain name, and the burden is thus on Respondent to produce evidence to rebut this presumption.
Respondent has failed to show that it has acquired any legitimate trademark rights in respect of the domain name or that the domain name has been used in connection with a bona fide offering of goods or services. To the contrary, Respondent has used the domain name in respect of the Websites in order to generate pay-per-click revenue by way of sponsored links to third party websites. Respondent has also offered the domain name for sale for an amount far in excess of his likely out-of-pocket expenses incurred in registering the domain name.
There has been no evidence adduced to show that Respondent has been commonly known by the domain name.
There has been no evidence adduced to show that Respondent is making a legitimate non-commercial or fair use of the domain name.
The Panel has no hesitation in making a finding of bad faith registration and use due to Respondent’s use of the Website, under paragraphs 4(b)(i) and 4(b)(iv) of the Policy, and under the Panel’s general discretion.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <emmy.club> domain name be TRANSFERRED from Respondent to Complainant.
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Sebastian M W Hughes, Panelist
Dated: April 14, 2016
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