WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
European Broadcasting Union v Domain 4 sale
Case No : D2000-0737
1. The Parties
The Parties to this complaint are the :
European Broadcasting Union ("EBU") of
Ancienne Route 17A
Case Postale 45
CH1218 Grand-Saconnex
Switzerland
the Complaint, and
Domain 4 sale ("D4s") of
Maltepe, 65-18
TR-81541 Istanbul
Turkey
the Respondent.
2. The Domain Name and Registrar
The domain name at issue in this complaint is E, and the Registrar is Network Solutions Inc of 505 Huntmar Park Drive, Herndon, Virginia 20170, USA.
3. Procedural History
A complaint pursuant to the Rules and Supplemental Rules was lodged by e-mail on July 5, 2000 with a hard copy following on July 7, 2000, and a Supplementary document following on July 14, 2000.
All the appropriate procedural requirements were met, and a response was received from the Respondent on August 7, 2000. The Center has complied with all the necessary formalities by way of acknowledgements. All payments appear to have been duly made and time limits complied with.
The Panelist has submitted a statement of acceptance and declaration of impartiality and independence, and the date scheduled for the Panel�s decision is August 28, 2000. The language of the proceeding is English.
4. Factual Background
EBU is the owner of the international collective trade mark and service mark IR 634 693 "Eurovision" (Word Plus logo) registered on April 21st, 1995 for 28 countries in Europe and North Africa. There are further registrations of the same trade mark in other European countries on a national basis. The mark "Eurovision" has been in continuous use by EBU since at least the 1950s. Its best known manifestation is in respect of the Eurovision Song Contest, but it equally applies to a wide variety of pan-European broadcast events, including major international sporting events.
EBU is a non-profit making organisation, which is an association of various national broadcasters largely from Europe and neighbouring countries.
D4s registered the domain name, E, with Network Solutions on October 8, 1999. At first the sight promised to contain content relating to the Eurovision Song Contest 2000, with the tag-line "Our website will be ready very soon �". Subsequently, by March 2000, the content of the site had changed so that it incorporated a photograph under the heading "My name is Tahir and I kiss you".
5. Parties Contentions
EBU contends that the domain name in question is identical or confusingly similar to its trade mark, that D4s has no right or legitimate interest in respect of the domain name, and that the domain name has been registered and is being used in bad faith.
EBU points to the conduct of the D4s as evidence that it has no legitimate right or interest in the domain name, and that the registration was in bad faith. It is the contention of EBU that the first sight content regarding the Eurovision Song Contest was a sham, and intended only to enhance the value of the site for onward sale purposes. It points to the fact that D4s initially offered the site for sale for $25,000, claiming that it had substantial sponsorship interest, but subsequently reduced the asking price to $5,000 and then, before the Eurovision 2000 actually took place, changed the content of the site to a matter which was totally unrelated to the Eurovision Song Contest.
EBU contends that the mere offer for sale of the domain name constitutes prima facie evidence of bad faith, and points to earlier Panel decisions in order to justify that assertion.
In its response, D4s points to the absence of US or Canadian trade marks for "Eurovision" and claims that the word "Eurovision" has a wider meaning than that connected with EBU. It further claims that the EBU could, if it wishes, use other forms of domain name to denote connection with the Eurovision Song Contest.
6. Discussion and Findings
It is the duty of the Panel to decide whether the Complainant has a sustainable complaint which meets the requirements of paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy, namely that the domain name in question is identical or confusingly similar to a trade mark or service mark on which a complainant has rights; that the Respondent has no legitimate rights or interests in the domain name; and that the domain name has been registered and is being used in bad faith.
Paragraphs 4(b) and (c) of the said policy provide guidance to the parties in demonstrating, for the Respondent, that it has legitimate interests, and for the Complainant that bad faith has occurred.
Dealing first with the issue of the Respondent�s interest in the domain name, no substantial evidence has been proffered of any genuine preparation to use the domain name or a name corresponding to it in connection with a bona fide offering of goods or services (paragraph 4(b)(i)). There is further no evidence that the Respondent has ever been commonly known by the name "Eurovision" nor is there any evidence of a legitimate non-commercial fair use of the domain name. The Respondent has had ample opportunity to demonstrate that the initial content of the site, which appeared to relate to the Eurovision Song Contest, was being prepared or planned. Had there been legitimate intention to use the site for the purposes of attracting interest in the Eurovision Song Contest 2000, it is highly likely that there would have been documentary evidence of preparation given the timescale involved.
With regard to the evidence of bad faith, EBU points to the mere fact that the domain name was offered for sale as amounting to such evidence. It contends that an offer to sell the domain name for a sum in excess of out-of-pocket expenses directly related to the domain name "must be regarded as a circumstance of evidence of bad faith of registration and use pursuant to paragraph 4(b)(i) of the policy".
The Panel does not believe that of itself, offering a domain name for sale at a value above the cost of registration, is prima facie evidence of bad faith. Like a trade mark, a domain name is a tradable commodity, and there is no reason why a bargain should not be struck between a willing buyer and a willing seller for the legitimate transfer of a registered domain name at a value which reflects its commercial worth to the parties. However, this pre-supposes that the domain name in question has arisen independently and legitimately, and was not specifically created or registered for the purposes of eliciting a sale. That is the key criteria in establishing bad faith.
In this case, the name of the Respondent itself is perhaps indicative of its intentions. Having provided no worthwhile evidence of a genuine legitimate intention to use the domain name for legitimate commercial reasons, the Panel is forced to conclude that the primary purpose of the registration was to sell the domain name at a significant price to EBU or another purchaser.
Accordingly, in relation to the necessary criteria in paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy, a Panel finds;
(i) that the domain name in question is identical or confusingly similar to a trade mark and service mark belonging to the Complainant; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name was registered and is being used in bad faith.
The Panel accordingly finds for the Complainant in this matter.
7. Decision
In light of the foregoing, the Panel decides that the domain name registered by D4s is identical to the trade and service mark of EBU, that D4s has no legitimate interests in respect of this domain name, and that the domain name in issue has been registered and is being used in bad faith.
Accordingly, the Panel requires that the registration of the domain name E be transferred to EBU.
Gordon D. Harris
Sole Panelist
August 22, 2000
Full & Egal Universal Law Academy