WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
QVC, Inc., ER Marks, Inc. v. Domain Buyer
Case No. D2006-1020
1. The Parties
The Complainants are QVC, Inc., of Pennsylvania, United States of America, and ER Marks, Inc. of Delaware, United States of America, both represented by Connolly Bove Lodge & Hutz, LLP, United States of America. The Panel will refer to them together as “the Complainants”.
The Respondent is Domain Buyer, Antigua Domains, of St. Johns, Antigua and Barbuda.
2. The Domain Names and Registrar
The disputed domain names
and (“the Disputed Domain Names”) are registered with InnerWise, Inc. d/b/a ItsYourD.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August�10,�2006. On August�11,�2006, and August�15,�2006, the Center transmitted by email to InnerWise, Inc. d/b/a ItsYourD a request for registrar verification in connection with the domain names at issue. On August�16,�2006, InnerWise, Inc. d/b/a ItsYourD transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint and the proceedings commenced on August�18,�2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September�7,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September�8,�2006.
The Center appointed Michael D. Cover as the sole panelist in this matter on September�19,�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
There are two Complainants. The QVC business is carried on by QVC, Inc. and the QVC trademarks are owned by ER Marks, Inc., a wholly-owned subsidiary of QVC, Inc., and are licensed exclusively to QVC, Inc. There are extensive registrations of trademarks consisting of and including QVC in the United Sates of America and other jurisdictions.
QVC, Inc. began providing electronic retail services for in-home shopping in connection with the QVC trademark in 1986. This was initially in the United States of America but is now throughout the World. QVC has extensive worldwide reach and, in�2005, QVC, Inc. had worldwide net revenue of US $ 6,501 million.
The Disputed Domain Names were registered at various times in January 2005. The Registrant is Domain Buyer, Antigua Domains, steve282@, with an address in Antigua. The Panel is reliant on the Complaint for the Factual Background, as the Respondent is in default.
The Complainants’ lawyers wrote to the Respondent in March and April�2005 requiring transfer of the Disputed Domain Names. They received no response.
It appears that the Disputed Domain Names provide “sponsored links” to competitors of the Complainants and that the Respondent has, in the past, previously owned other domains which included the element QVC.
5. Parties’ Contentions
A. Complainant
The Complainants contend that they have significant unregistered and registered rights in QVC. They also contend that the Disputed Domain Names are identical or confusingly similar to QVC, being a trademark in which they have rights.
They further maintain that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names. They point to the fact the Disputed Domain Names were registered many years after they adopted and established rights in the QVC trademark and that there is no evidence that the Respondent has ever used or had any connection with the QVC element prior to registering the Disputed Domain Names.
Finally, in relation to bad faith, they maintain that the Respondent is seeking to attract for commercial gain users to their web sites. They state, on information and belief, that the Respondent receives financial compensation for the “sponsored links”. They also state that the non-provision of an individual contact within the registrant details is of itself evidence of bad faith and cite various cases in support of those contentions.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainants have clearly established rights in their trademark QVC. They have an extensive portfolio of trademark registrations and overwhelming evidence of rights acquired through use in many jurisdictions. Whilst it is not a particular requisite, the Complainants have established that QVC is a well-known mark.
The Disputed Domain Names all include the OVC mark as a primary and distinctive element, in addition to words of a common and descriptive nature. The Panel finds that the Disputed Domain Names are each confusingly similar to the Complainants’ OVC mark.
B. Rights or Legitimate Interests
The Complainants have also established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Names. The Respondent, by being in default, has not availed itself of the opportunity to demonstrate any rights or legitimate interests in the Disputed Domain Name by virtue of paragraph 4(c) of the Policy. In any event, QVC is a well-known mark by any standards, in which no person, company or organization not deriving title from the Complainants or licensed by them would be likely to have rights or legitimate interests. There is no evidence of prior bona fide use, that the Respondent has been commonly known by the Disputed Domain Names (or any of them) nor of legitimate noncommercial use of the Disputed Domain Names or any of them.
Accordingly, the Panel finds for the Complainant in relation to the second element of the Policy.
C. Registered and Used in Bad Faith
Mere registration of a domain that otherwise is objectionable under the UDRP may in certain limited circumstances be sufficient to constitute bad faith registration and use but each case has to be looked at on its facts. In this case, there is evidence, which has not been rebutted, that there is linking which intentionally attempts to attract for commercial gain Internet users to the websites behind the Disputed Domain Names in order to create a likelihood of confusion with the Complainants’ mark. This constitutes bad faith use and is evidence sufficient to find bad faith registration and use under paragraph 4(b)(iv) of the Policy.
Surprisingly, the Complainants do not point to any evidence that the registration of the Disputed Domain Names is preventing them from reflecting their mark in corresponding domain names. Had they done this, this would have pointed to a further instance of bad faith, in circumstances where there is unrebutted evidence on a course of conduct in this regard, although one which appears to fall short of other decisions under the UDRP against the Respondent.
Finally, under this head, the Complainants submit that the failure to respond to their lawyers cease and desist letters of March�and�April�2005 is further evidence of bad faith. The Panel notes in passing that more than a year went by between those cease and desist letters and the filing of the Complaint. No explanation for this is given, although nothing turns on it. The Complainants cite National Football League Players Association, Inc. v. Cayman Trademark Trust d/b/a Trademark, WIPO Case No. D2005-0234. This was a case where the respondent did not respond to a cease and desist letter but then subsequently agreed to a transfer in the face of the filing of the complaint. The Panel notes the decision in WIPO Case No. D2005-0234 and agrees that, in this case, the non-response to not one but two such letters is further evidence of bad faith.
Accordingly, the Panel finds that the Complainants have established that the Disputed Domain Names have been registered and are being used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15�of the Rules, the Panel orders that the Disputed Domain Names , and , be transferred to the Complainants.
Michael D. Cover
Sole Panelist
Date: October�8,�2006
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