WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
QVC, Inc. and ER Marks, Inc. v. ActiveI
Case No.�D2005-1303
1. The Parties
The Complainants are QVC, Inc., a corporation of the State of Delaware with a principal place of business in West Chester, Pennsylvania (“Complainant QVC”), United States of America and its wholly owned subsidiary ER Marks, Inc., a corporation of the State of Delaware with a principal place of business in Wilmington, Delaware, United States of America (“Complainant�ER�Marks”).
The Respondent is ActiveI, an organization listing a domain name registration contact in Quaker Hill, Connecticut, United States of America.
2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eNom,�Inc. (the�“Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on December�15,�2005. On December�16,�2005, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December�17,�2005, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing registrant contact details for Respondent. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the�“Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the�“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the�“Supplemental�Rules”).
In accordance with the Rules, paragraph�2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December�28,�2005. In accordance with the Rules, paragraph 5, the due date for a Response was January�17,�2006. The Respondent failed to file a Response with the Center by the due date and was notified of its default on January�18,�2006.
The Center appointed Maxim�H.�Waldbaum as the Sole Panelist in this matter on January�24,�2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph�7.
4. Factual Background
The Complainant QVC is engaged in providing electronic retail services for in-home shopping in connection with the registered trademark QVC (the�“Mark”).
Respondent registered the Domain Name on July�28,�2005.
5. Parties’ Contentions
A. Complainants
Complainants contend that:
Complainant QVC has used the Mark in connection with its business of providing electronic retail services for in-home shopping since 1986.
Complainant QVC’s home shopping business in connection with the Mark reaches 77,000,000 homes in the United States and over 130,000,000 homes worldwide.
Complainant QVC has maintained websites in connection with its in-home shopping business at “” and “” since prior to January�1,�2000.
The QVC Mark is a globally famous and respected mark.
Complainant ER Marks owns valid registrations of the Mark with the United States Patent and Trademark Office, as well as with numerous international jurisdictions. Complainant QVC is the exclusive licensee of the Mark.
The Domain Name connects the user to an active website with links to other websites engaged in shopping and other activities that compete with Complainant QVC.
The Domain Name is confusingly similar to the Mark, Respondent has no right or legitimate interests in the Domain Name, and Respondent has registered and used the Domain Name in bad faith.
Complainants request that the Domain Name be transferred to Complainant QVC, or in the alternative that the Domain Name be cancelled.
B. Respondent
Respondent has not submitted a Response.
6. Discussion and Findings
According to paragraph�4(a) of the Policy, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
To satisfy this element a complainant must establish it has rights to a trade or service mark, and that the disputed domain names are identical or confusingly similar to such mark. See Policy paragraph�4(a)(i). Under the Policy, the test of confusing similarity is “confined to a consideration of the disputed domain name and the trademark”. America Online, Inc. v. Anson Chan, WIPO Case No.�D2001-0004 (February�27,�2001).
Complainants have alleged that, since 1987, Complainant QVC has owned a registration for, or has been the exclusive licensee of, the Mark. Further, Complainants allege that the Mark is internationally famous. Respondent, in defaulting, does not dispute that Complainant QVC has rights to the Mark or that the Mark is internationally recognized and associated with Complainant QVC.
The Domain Name incorporates the Mark in its entirety. Under the Policy, paragraph�4(a)(i), “the fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy. . . .” Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No.�D2001-0903 (November�6,�2001). Respondent, in defaulting, does not dispute that the Domain Name is identical or confusingly similar to the Mark.
The Panel thus finds that Complainants have rights in the Mark, that the Mark is well renowned, that the Domain Name is confusingly similar to the Mark, and that Complainants have satisfied their burden of proof under paragraph 4(a)(i).
B. Rights or Legitimate Interest
To satisfy this element, Complainant must establish that Respondent has no rights or legitimate interests in respect of the Domain Names.
Complainants have shown that the Domain Name is used by Respondent to direct Internet users to a webpage containing nothing other than a search engine and links to other Internet web pages. The use of a domain name that merely offers links to other websites is not a bona fide offering of goods and services pursuant to paragraph�4(c)(i). See e.g., Southern Communications Services, Inc., d/b/a Southern Linc v. Henry Chan, WIPO Case No.�D2004-0214 (May�10,�2004). Respondent, in defaulting, has not disputed Complainants’ contention in this regard.
Additionally, Complainants contend that Respondent is not commonly known by the Domain Name. The Panel finds that the lack of any bone fide offering of goods or services in connection with the Domain Name is a sufficient prima facie showing that Respondent is not commonly known by the Domain Name. Respondent, in defaulting, has not disputed Complainants’ contention in this regard.
Complainants further contend that Respondent is using the Domain Name with the intent to commercially benefit by “misleadingly divert[ing] consumers” to its website. Policy, paragraph�4(c)(iii). The Panel finds that the Domain Name confusingly incorporates the well renowned QVC Mark in a manner likely to mislead consumers into believing that the links to business offerings on Respondent’s website are affirmatively authorized and/or sponsored by Complainant QVC. Such use evidences an intentional attempt to misleadingly divert consumers to Respondent’s website for commercial gain and therefore cannot be a legitimate non-commercial or fair use under paragraph�4(c)(iii) of the Policy. Respondent, in defaulting, has not disputed Complainants’ contention in this regard.
The circumstances alleged by Complainants are thus sufficient to make a prima facie showing that: (i) Respondent does not use the Domain Name in connection with a bona fide offering of goods and services; (ii) Respondent is not commonly known by the Domain Name; and (iii) Respondent is not making a non-commercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the Mark. The Panel holds thus that Complainants have made a prima facie showing that Respondent lacks rights or legitimate interests in the Domain Name, and that Respondent, in defaulting, has failed to rebut such showing. The Panel accordingly finds that Complainants have thus satisfied their burden of proof under�paragraph�4(a)(ii).
C. Registered and Used in Bad Faith
Under paragraph�4(b)(i) of the Policy, registration and use in bad faith is properly evidenced by circumstances indicating the registrant has registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant or its competitor for valuable consideration in excess of costs related to the domain name. Policy paragraph�4(b)(i). Here, Complainants have shown that Respondent’s use of the Domain Name is limited to directing Internet users to a website consisting primarily of links to other web pages offering services in competition with Complainant QVC. Further, Complainants contend that Respondent receives financial compensation in connection with such use. Respondent, in defaulting, has not disputed Complainants’ contentions in this regard. The Panel finds such use to be primarily a rental to the Complainants’ competitors, and thus a bad faith registration and use under paragraph 4(b)(i) of the Policy. The Panel accordingly finds that Complainant has established Respondent’s bad faith registration and use of the Domain Name and has thus satisfied its burden of proof under paragraph�4(a)(iii).
7. Decision
For all the foregoing reasons, in accordance with paragraph�4(i) of the Policy and paragraph�15 of the Rules, the Panel orders that the domain name be transferred to Complainant QVC.
Maxim H. Waldbaum
Sole Panelist
Dated: February�7,�2006
Full & Egal Universal Law Academy