Zee TV USA, Inc. v. Indermohan Chabra
Claim Number: FA0702000914921
Complainant is Zee TV USA, Inc. (“Complainant”), represented by Kay
Lyn Schwartz, of Gardere Wynne Sewell, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <zeeradio.com>, registered with Go Daddy Software, 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
On
On February 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 6, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@zeeradio.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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." 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 <zeeradio.com> domain name is confusingly similar to Complainant’s ZEE mark.
2. Respondent does not have any rights or legitimate interests in the <zeeradio.com> domain name.
3. Respondent registered and used the <zeeradio.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, ZEE TV USA, Inc., holds a United States Patent
and Trademark Office (“USPTO”) registration for the ZEE mark (Reg. No. 3,097,2002 issued
Respondent registered the <zeeradio.com>
domain name on
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’s USPTO registration of the
ZEE mark, which predates Respondent’s registration of the <zeeradio.com> domain name,
establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that
registration of a mark is prima facie evidence
of validity, which creates a rebuttable presumption that the mark is inherently
distinctive."); see also Vivendi Universal Games v. XBNetVentures Inc.,
FA 198803 (Nat. Arb. Forum
Respondent’s <zeeradio.com>
domain name is confusingly similar to Complainant’s ZEE mark. The disputed domain name includes
Complainant’s mark in its entirety. In Oki
Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001), the panel
concluded that “the fact that a domain name wholly incorporates a Complainant’s
registered mark is sufficient to establish identity [sic] or confusing
similarity for purposes of the Policy despite the addition of other words to such
marks.” The disputed domain name also
includes the term “radio.” As “radio” is
a term that describes one of the many aspects of Complainant’s broadcast and
entertainment services, the term “radio” does not distinguish the disputed
domain name from Complainant’s mark.
Faced with a similar addition of a descriptive term to the complainant’s
mark, the panel in Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat.
Arb. Forum Mar. 5, 2001), found that the <hoylecasino.net> domain name
was confusingly similar to the complainant’s HOYLE mark, and that the addition
of “casino,” a generic word describing the type of business in which the
complainant was engaged, does not take the disputed domain name out of the
realm of confusing similarity. Thus, the
Panel finds that the disputed domain name is confusingly similar to
Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
The panel in G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum
Respondent first used the disputed domain name to operate a portal with links to competing third-party websites. Respondent then began to use the <zeeradio.com> domain name to redirect Internet users to its website located at <pbshost.com> which also offered services in direct competition with Complainant. Neither of these uses constitutes a bona fide offering of goods or services or a legitimate noncommercial or fair use as contemplated by Policy ¶¶ 4(c)(i) and (iii). In TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002), the panel found that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services. Similarly, in DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002), the panel stated that, “Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.” Applying these findings to the case at hand, the Panel finds that Respondent’s use of the disputed domain name is not one contemplated by Policy ¶¶ 4(c)(i) and (iii) and does not establish for Respondent rights or legitimate interests in the disputed domain name.
Further, there is no available evidence suggesting that
Respondent is commonly known by the <zeeradio.com>
domain name. The panel
in Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <zeeradio.com>
domain name redirects Internet users seeking Complainant’s services to
Respondent’s website which offers broadcast and entertainment services in
direct competition with Complainant. The panel in Disney Enters., Inc. v.
Noel, FA 198805 (Nat. Arb. Forum
Respondent is using the confusingly similar <zeeradio.com> domain name to redirect Internet users to its website at <pbshost.com>. Because of the confusingly similar domain name, coupled with the similarity of services offered by Complainant and Respondent, Internet users may mistakenly believe that Respondent’s website is sponsored by or affiliated with Complainant. Respondent is presumably profiting from this confusion both through the collection of pay-per-click fees from advertisements and third party links and from consumer purchases of its competing services. The panel in Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003), found such use to be evidence of bad faith registration and use, saying that “Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.” The panel in TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003), applied similar reasoning, finding that, “although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.” The Panel finds that bad faith registration and use pursuant to Policy ¶ 4(b)(iv) is also evident in the present dispute.
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zeeradio.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 16, 2007
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