WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION CBS Broadcasting Inc. v. Forhart - Michael Englehardt Case No. D2010-0284 1. The Parties
The Complainant is CBS Broadcasting Inc. of New York, New York, United States of America, represented by Naomi B. Waltman, Esq.
The Respondent is Forhart - Michael Englehardt of Phoenix, Arizona, United States of America. 2. The Domain Names and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 23, 2010. On February 24, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On the same day, eNom transmitted by email to the Center its verification response confirming the registrant and contact information for the disputed domain name.
On March 1, 2010, The Center verified that the 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 Respondent of the Complaint, and the proceedings commenced on March 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 21, 2010. Respondent did not submit any Response. Accordingly, the Center notified Respondent's default on March 22, 2010.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on April 7, 2010. 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
Complainant is CBS Broadcasting Inc. Complainant is one of the leading television and radio broadcasting in the United States, where the Respondent is apparently located. Complainant is also a global leader in entertainment and news programming. For over seventy-six years, Complainant has used the CBS mark in commerce in the United States to promote its television and radio broadcasting services, including news radio services. Due to extensive use and promotion, Complainant's CBS mark has become famous for these services.
Complainant has obtained several trademark registrations for CBS (852,481, issued 1968; and 2758242, issued 2003). Complainant also owns several registrations containing CBS with descriptive wording, such as CBS NEWS (3070089, issued 2006) and CBS RADIO (3295365 issued 2007 and 3295366 issued 2007). Although some of these issued after Respondent obtained the disputed domain name, it is evident that Complainant was using CBS for radio news broadcasting services long before 2005.
Complainant owns the registration for the domain name . Complainant uses this domain name to connect to a website through which it informs potential customers about its CBS mark and its television and radio broadcasting services and products.
Respondent registered the domain name on October 20, 2005. Respondent has no affiliation with Complainant. Respondent has in the past linked the disputed domain name to websites that describe or advertise goods or services that are unaffiliated with Complainant or Complainant's services. These include competing products. Complainant has not authorized these links, nor the use of its trademarks therewith.
On March 4, 2008, Complainant sent Respondent a cease and desist letter, requesting that Respondent transfer registration of the disputed domain name to Complainant. On March 30, 2008, Respondent answered via email, stating that the domain name “has been unlocked and servers changed.” However, Respondent did not follow up, and Complainant was unable to obtain sufficient information to make the transfer prior to bringing this proceeding. 5. Parties' Contentions A. Complainant
Complainant contends that (i) is identical or confusingly similar to Complainant's trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions in this proceeding. 6. Discussion and Findings A. Identical or Confusingly Similar
This Panel must first determine whether is identical or confusingly similar to a trademark or service mark in which the Complainant has rights in accordance with paragraph (4)(a)(i) of the Policy. The Panel finds that it is. The disputed domain name directly incorporates Complainant's famous, registered trademark CBS, and merely adds the descriptive words “news” and “radio.”
The Panel finds that the added words would be perceived by web users as descriptive of a website where they could find information about Complainant's news and radio services. This is particularly so since CBS specifically offers services under the marks CBS NEWS and CBS RADIO.
Numerous UDRP panels have agreed that supplementing or modifying a trademark with generic or descriptive words does not make a domain name any less “identical or confusingly similar” for purposes of satisfying this first prong of paragraph (4)(a)(i) of the Policy. See, for example, Microsoft Corporation v. Step Web,WIPO Case No. D2000-1500 (transferring ); General Electric Company v. Recruiters,WIPO Case No. D2007-0584 (transferring ); CBS Broadcasting Inc. v. Y2K Concepts Corp.,WIPO Case No. D2000-1065 (transferring ).
This Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph (4)(a)(i) of the Policy. B. Rights or Legitimate Interests
The Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in the domain names at issue in a UDRP dispute. For example, paragraph (4)(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that Respondent has been “commonly known by the domain name”; or (iii) “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
Respondent did not reply to the Complaint, however, and no evidence has been presented to this Panel that might support a claim of Respondent's rights or legitimate interests in the domain name. Rather, as mentioned in Section 4 of this Panel's decision, Respondent has used the disputed domain name to divert Internet users to websites that are unaffiliated with Complainant or Complainant's services. Furthermore, we take note that in an email dated March 30, 2008, Respondent stated that the domain name “has been unlocked and servers changed.” Since Respondent declined to respond to this proceeding, and there is no evidence to the contrary, the Panel accepts this email message as sufficient admission of his lack of rights or legitimate interest in the disputed domain name.
Therefore, this Panel finds that Complainant has provided sufficient evidence of Respondent's lack of “rights or legitimate interests” in accordance with paragraph (4)(a)(ii) of the Policy. C. Registered and Used in Bad Faith
There are several ways that a complainant can demonstrate that domain names were registered and used in bad faith. For example, paragraph (4)(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent's] web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [respondent's] website or location or of a product or service on [the] web site or location”. As noted in Section 4 of this Panel's decision, Respondent has linked the disputed domain name to websites that describe or advertise goods or services that are unaffiliated with Complainant or Complainant's services. In so doing, Respondent is trading on the goodwill of Complainant's trademarks to attract Internet users, presumably for Respondent's own commercial gain. This evidences bad faith by Respondent.
In particular, Respondent has linked the disputed domain name to websites that describe or advertise goods or services that are unaffiliated with Complainant or Complainant's services. These include competing products. Complainant has not authorized these links, nor the use of its trademarks therewith.
Therefore, this Panel finds that Respondent registered and used the disputed domain name in bad faith in accordance with paragraph (4)(a)(iii) of the Policy. 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 Complainant.
Lorelei Ritchie
Sole Panelist
Dated: April 21, 2010
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