WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bravo Media LLC v. Name, Administrator, Hong Kong Domains LLC. Case No. D2009-0586 1. The Parties
The Complainant is Bravo Media LLC of New York, New York, United States of America, represented by Kilpatrick Stockton, LLP, United States of America.
The Respondent is Name, Administrator, Hong Kong Domains LLC. of Hong Kong, SAR of China. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 6, 2009. On May 6, 2009, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On May 15, 2009 Moniker Online Services, LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 15, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 20, 2009. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 May 27, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 16, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 17, 2009.
The Center appointed Stefan Abel as the sole panelist in this matter on June 25, 2009. 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 is the owner and operator of a cable television channel in the United States of America. It provides entertainment programming including (reality) TV shows, films and series. The network was launched in 1980. In 2002, NBC Universal Inc. acquired Complainant's television channel.
The Complainant is the registered owner of the US trademark No. 1934929 BRAVO registered for television broadcasting services, claiming use since 1979. The Complainant is also the registered owner of other several US trademarks containing the term “bravo”, in particular US trademark No. 160590, 3150543 and 3122816. Further, the Complainant is the owner of the Canadian trademark No. TMA466639, registered on November 29, 1996, for television programming and broadcasting services.
The Complainant is also the reported owner of the domain name , created in 1995 and used since 1996. The Complainant provides information about the Bravo television channel and additional information about its programs, as well as other services related to television and broadcasting.
The disputed domain name was registered on March 14, 2002. The Respondent's site at the disputed domain name contains a number of links to numerous commercial websites under different categories such as “Direct TV Internet”, “Satellite TV”, “Free Direct TV”, and “DirectTV” (among others). Upon clicking on these listings, users are directed to further web pages with links to TV shows, television programs and other media related content, such as, for example, “Watch Internet TV on Your PC”, “Watch Online TV” or “Direct TV Internet”.
The Respondent has been involved in several previous administrative proceedings, for example Volvo Trademark Holding AB v. Hong Kong Names LLC,WIPO Case No. D2008-0735; Villeroy & Boch AG v. Whois Data Shield/Hong Kong Names LLC,WIPO Case No. D2008-1300 and Reebok International Limited v. Domain Privacy Service, Hong Kong Names LL, WIPO Case No. D2008-0359. All of those proceedings resulted in the finding of registration and use in bad faith and the Respondent's domain names being transferred to the respective complainant. 5. Parties' Contentions A. Complainant
In summary, the Complainant's contentions are as follows:
The Complainant launched its television network in 1980. It is one of the world's leading media and entertainment companies. The Complainant's programming and broadcasting services have acquired a high reputation and a high degree of public recognition, goodwill and fame. The various BRAVO trademarks are widely known in trade.
The disputed domain name is confusingly similar to the Complainant's BRAVO trademarks and brands as it incorporates this term exactly and in its entirety. The addition of the word “channel” fails to distinguish the domain name from the trademarks.
The Respondent has no rights or legitimate interest in respect of the disputed domain name. The Respondent has registered and is using the domain name to capitalize upon the goodwill and fame of the Complainant for its own commercial gain. It is likely that Internet users will be directed to Respondent's pay-per-click Internet site Respondent derives a financial benefit in the form of a pay-per-click revenue.
The Respondent has a well-established pattern of registering and using domain names containing the trademarks of third parties in bad faith. By registering the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's sponsored link website by creating likely of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website.
The Complainant requests that the domain name be transferred from the Respondent to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Policy provides for a transfer of a domain name if the Complainant establishes each of the following elements set out in paragraph 4(a)(i) to (iii) of the Policy:
- The Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the domain name; and
- the domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out certain circumstances which, in particular, but without limitation, shall be evidence of registration and use of the domain name in bad faith. A. Identical or Confusingly Similar
The Panel finds that the domain name at issue is confusingly similar to the Complainant's registered trademarks BRAVO. The disputed domain name consists of the Complainant's trademark BRAVO in combination with the term “channel”. This additional generic term describes the core services that the Complainant provides under its company name and trademarks. The term “channel” added to the Complainant's trademarks BRAVO in the domain name therefore does not only lack any distinctive character with regard to these signs owned by the Complainant but reinforces the confusing similarity of the domain name to these marks.
As a general rule, the addition of a generic term to a domain name consisting of a trademark rarely excludes a finding of confusing similarity under the policy. This finding is consistent with a number of previous UDRP decisions (see e.g. Grupo Televisa, S.A. Televisa S.A. de C.V. Comercio Mas, S.A. de C.V. Estrategia Televisa, S.A. de C.V. Videoserpel, Ltd. v. Registrant info@ 9876543210,WIPO Case No. D2003-0735; British Broadcasting Corporation v. Registrant (187640) info@ +1.25255572,WIPO Case No. D2005-1143).
The Panel finds that the first element of the Policy has been satisfied. B. Rights or Legitimate Interests
There is no indication that the Respondent is licensed or otherwise authorized by the Complainant to use its registered trademarks or to register the disputed domain name.
The element “bravo” used in the disputed domain name does not have any apparent descriptive meaning related to the content of the Respondent's website. The term “Bravo channel” or “bravo” on the website at the disputed domain name is not used as a designation for a person or a company other than the Complainant or for services or products other than those provided by the Complainant.
In addition, the Respondent has already been found in a series of other UDRP proceedings to have no rights or legitimate interests in several other domain names and was found to have registered and used these domain names in bad faith.
By producing evidence on these four circumstances, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the domain name. The evidentiary burden therefore shifts to the Respondent. The Respondent must then by concrete evidence demonstrate its rights or legitimate interests in that domain name in order to refute the prima facie case. The Respondent has made no such showing.
The Panel finds that the Respondent's default in refuting the prima facie case made by the Complainant is sufficient to establish this element of the Policy. It is an impossible task for the Complainant to prove a negative that is primarily within the knowledge of the Respondent, such as the lack of rights or legitimate interests in the domain name. Producing evidence that the Respondent prima facie has no rights or legitimate interests in the domain name must therefore be regarded as sufficient to establish the requirement of paragraph 4(a)(ii) if the Respondent fails to rebut the prima facie case. This finding is consistent with the consensus in previous UDRP decisions (see e.g. Belupo d. d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110). C. Registered and Used in Bad Faith
The Panel finds that the Complainant has established this element in accordance with paragraph 4(b)(ii) and (iv) of the Policy for the following reasons:
The Panel finds that, by using the domain name for a set of pay-per-click links to commercial websites for the promotion of services related to media and television, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's BRAVO company name and trademarks as to source, sponsorship and affiliation of the website (paragraph 4(b)(iv) of the Policy).
The domain name combines the Complainant's trademarks with the term “channel” which is descriptive of the Complainant's fields of service, namely media and television programming and broadcasting. In addition to that, the Respondent's website provides links to media related services and information and Internet users are therefore likely to get the idea that the Respondent's site at the disputed domain name is an official site of the Complainant, sponsored by the Complainant or affiliated with the Complainant. Such likelihood of confusion will attract more customers to the site at the disputed domain name which will result in commercial gain as the Respondent's site provides links to numerous commercial websites.
The Panel finds that the Respondent acted intentionally. It is not conceivable to the Panel that the Respondent could have registered the disputed domain name without having the Complainant and its trademarks in mind. The Respondent's intention to use the disputed domain name as a reference to the Complainant and its trademarks is obvious considering that no rights or legitimate interests in using the domain name are apparent, that the Complainant is a large, well-known broadcasting company, that the US and Canadian trademarks have been registered years before the registration of the disputed domain name and that the Complainant has been providing services related to its programs on its website “www.” since 1996.
In addition, the Panel finds that the Respondent has engaged in a pattern of conduct preventing trademark owners from reflecting their marks in corresponding domain names (paragraph 4(b)(ii) of the Policy). There are at least five UDRP decisions ordering the Respondent to transfer different domain names that were identical or confusingly similar to trademarks of different trademark owners (see, among others, Volvo Trademark Holding AB v. Hong Kong Names LLC,WIPO Case No. D2008-0735; Villeroy & Boch AG v. Whois Data Shield/Hong Kong Names LLC,WIPO Case No. D2008-1300 and Reebok International Limited v. Domain Privacy Service, Hong Kong Names LL, WIPO Case No. D2008-0359). 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 domain name, be transferred to the Complainant.
Stefan Abel
Sole Panelist
Dated: July 9, 2009
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