The Complainant is Independent News Services Private Ltd. of New Delhi, India, represented by Rahul Khanna, India.
The Respondent is Devendra Singh of Bakalpur, Mathura, India. 2. The Domain Name and Registrar
The disputed domain name is registered with BigRock Solutions Pvt Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 10, 2018. On April 10, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 11, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 2, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 4, 2018.
The Center appointed Dr. Ashwinie Kumar Bansal as the sole panelist in this matter on May 28, 2018. 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 was incorporated as a company in the year 1997 by Mr. Rajat Sharma, an Indian journalist and TV Anchor. The Complainant adopted the mark INDIA TV on December 1, 2002 and subsequently it obtained trademark registrations in class 38 and Class 41 in India. The Ministry of Information and Broadcasting, Government of India had granted permission to the Complainant to uplink its 24 hours Hindi news channel “INDIA TV” in the year 2003.
The Respondent has registered the disputed domain name on September 16, 2016. The disputed domain name resolves to a website with similar services to those provided by the Complainant. The look and feel of the website including the device/logo used is similar to that of the Complainant’s websites. 5. Parties’ Contentions A. Complainant
INDIA TV is a 24 hour Hindi news channel of the Complainant and its viewership extends to around 150 countries in Europe, Middle East, Asia, and Africa. Trademark INDIA TV was coined by Mr. Rajat Sharma as a platform for depicting India for the global television audience. Other private Hindi channels like Zee News, Star News, AajTak, etc. had also entered the fray in India.
The Complainant was initially producing news bulletins for Star News channel and Doordarshan. Since its launch in 2004, the channel INDIA TV has grown in strength and has become one of the leading Hindi news channels in India. The channel has evolved in this period and has produced a large number of well-known shows on news, current affairs etc. It has the credit of having raised issues of public concern including consumer rights and programs highlighting public importance.
The Complainant had coined name of channel INDIA TV and adopted this mark and its logo on December 1, 2002. Thereafter the Complainant has been using its trademark INDIA TV continuously, extensively, and uninterruptedly.
The Complainant has obtained trademark registrations over its Trademark INDIA TV and its few derivatives in class 38 and Class 41 in India. It is the registered owner, user and proprietor of trademarks like INDIA TV, INDIA TV’S MOST WANTED, INDIA TV INSTITUTE, INDIA WIZ TV, INDIA TV WORLD, INDIA TV YUVA AWARDS and INDIATVNEWS.COM. It has also filed applications for registration for few other related trademarks which are pending registration with the authorities.
The Complainant owns several domain names which contain the Trademark INDIA TV as their integral part. The Complainant has registered domain name on November 18, 2003 and domain name on April 4, 2015. The website “www.” of the Complainant is popular amongst the news readers and viewers which receives considerable number of hits every day. The said website disseminates news in English as well as Hindi language and also allows the news viewers to watch the Claimant’s channel INDIA TV live through web streaming.
The channel INDIA TV is being streamed live in English on its website “www.” and in Hindi on its website “www.”. To read the news in Hindi or watch live streaming of the Complainant’s television channel in Hindi, a user can click on the provided links on the Complainant’s website “www.”, which automatically re-directs the user to the Complainant’s Hindi language website “www.”. As per figures available with “www.A” the Complainant’s website “www.” is ranked 11, 949 globally as of April, 2018.
By virtue of long and continuous use, the Complainant’s Trademark INDIA TV has acquired the status of a “well-known trademark” and therefore it is entitled to the highest degree of protection. It enjoys enormous amount of reputation and fame. The Trademark INDIA TV is exclusively identified with the Complainant and its channel which is available throughout the world including India. The Trademark INDIA TV by reasons of continuous and extensive use by the Complainant has become associated exclusively with it. The mere mention of the Trademark INDIA TV establishes an instant connection with the Complainant and no one else. Thus no other party has the right to use the Trademark INDIA TV in any manner whatsoever.
The unauthorized use of the Trademark INDIA TV in any form whatsoever constitutes violation of the Complainant’s statutory and common law rights in the said mark. The common law rights in the Trademark INDIA TV by reasons of long and extensive use have been vested in the Complainant. The Trademark INDIA TV and logo written in a distinctive manner is an original creation of the Complainant. The said mark has acquired distinctive character by virtue of its extensive use since the year 2002. The said mark has become synonymous with the name of the Complainant.
The Respondent has incorporated the Complainant’s entire Trademark INDIA TV in the disputed domain name and added the numerals “24” in it. Addition of the numerals “24” in the disputed domain name is inconsequential insofar as it does not distinguish the disputed domain name of the Respondent from the Trademark of the Complainant. The disputed domain name is identical to the Complainant’s well-known and registered Trademark, except for the addition of the number “24”. The consumers are bound to be misled into believing that the services provided by the Respondent under the website “www.” are an extension of the Complainant’s line of services or are in some manner associated with the Complainant in the course of trade.
The registration of the disputed domain name by the Respondent is completely dishonest, illegal and mala fide with a view to obtain illegitimate monetary gains out of the Complainant’s Trademark and the goodwill and reputation garnered by the Complainant.
The Complainant being the prior user and registered proprietor of the Trademark INDIA TV and its derivatives/formatives is the only legitimate claimant to the name and Trademark INDIA TV. The registration of disputed domain name by the Respondent is illegal, dishonest and unfair at the cost of reputation and goodwill of the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
As per paragraph 5(e) of the Rules where a respondent does not submit a response, in the absence of exceptional circumstances, the panel may decide the dispute based upon the Complaint. The Panel does not find any exceptional circumstances in this case preventing it from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to file a response. As per paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel is to draw such inferences there from as it considers appropriate. It remains incumbent on the Complainant to make out its case in all respects under paragraph 4(a) of the Policy, which sets out the three elements that must be present for the proceeding to be brought against the Respondent, which the Complainant must prove to obtain a requested remedy. It provides as follows:
“4(a). Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a “complainant”) asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements are present.”
The Panel will address the three aspects of the Policy listed above. A. Identical or Confusingly Similar
The Complainant has produced registration certificates granted by the Registrar of Trademarks, in its favour in respect of the Trademark INDIA TV and its derivatives in class 38 and 41.
The disputed domain name incorporates the Complainant’s Trademark INDIA TV in its entirety, together with the number “24”. The Complainant’s Trademark INDIA TV is clearly recognizable in the disputed domain name, and the addition of “24” does not serve to avoid a finding of confusing similarity. The generic
Top-Level Domain “.com” may be disregarded for the purposes of comparison under this element.
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) section 1.7 provides the consensus view of panelists: “While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.”
In consideration of the foregoing paragraph, the Panel finds that the disputed domain name is confusingly similar to the Trademark INDIA TV in which the Complainant has rights.
Therefore, the Panel is satisfied that the first condition under the Policy is met. B. Rights or Legitimate Interests
The Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in the disputed domain name . Nevertheless, it is well settled that the Complainant needs only to make out a prima facie case, after which the burden of proof shifts to the Respondent who is required to rebut such prima facie case by demonstrating rights or legitimate interests in the disputed domain name.
The Respondent has registered the disputed domain name consisting of the Trademark INDIA TV of the Complainant. The Complainant had been using the Trademark for a long time. The Complainant has not authorized or permitted the Respondent to use the Trademark INDIA TV.
Paragraph 4(c) of the Policy lists circumstances, in particular but without limitation, which, if found by the Panel to be proved, may demonstrate the respondent’s rights or legitimate interests in a disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy. Section 2.1 of WIPO Overview 3.0 provides: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Respondent has failed to file a response to rebut the Complainant’s prima facie case or to advance any claim to rights or legitimate interests. The Respondent has thus failed to demonstrate any rights or legitimate interests in the disputed domain name as per paragraph 4(c) of the Policy.
Based on the facts as stated above, the Panel finds that the Complainant has made out an unrebutted case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy identifies, in particular but without limitation, four circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith. Each of the four circumstances in paragraph 4(b) of the Policy, if found, is evidence of “registration and use of a domain name in bad faith”. The Complainant is required to prove both that the disputed domain name was registered in bad faith and that it is being used in bad faith. Hence, circumstances at the time of registration and thereafter have to be considered by the Panel.
Section 3.1.1 of WIPO Overview 3.0 provides: “If on the other hand circumstances indicate that the respondent’s intent in registering the disputed domain name was in fact to profit in some fashion from or otherwise exploit the complainant’s trademark, panels will find bad faith on the part of the respondent. While panel assessment remains fact-specific, generally speaking such circumstances, alone or together, include: (i) the respondent’s likely knowledge of the complainant’s rights, (ii) the distinctiveness of the complainant’s mark, (iii) a pattern of abusive registrations by the respondent, (iv) website content targeting the complainant’s trademark, e.g., through links to the complainant’s competitors, (v) threats to point or actually pointing the domain name to trademark-abusive content, (vi) threats to “sell to the highest bidder” or otherwise transfer the domain name to a third party, (vii) failure of a respondent to present a credible evidence-backed rationale for registering the domain name, (viii) a respondent’s request for goods or services in exchange for the domain name, (ix) a respondent’s attempt to force the complainant into an unwanted business arrangement, (x) a respondent’s past conduct or business dealings, or (xi) a respondent’s registration of additional domain names corresponding to the complainant’s mark subsequent to being put on notice of its potentially abusive activity.”
The Respondent has also used a logo similar to logo of the Complainant for the similar services. The manner of writing the words “India TV” by the Respondent is also similar to that of the Complainant. The Respondent has even copied the colour scheme viz., Orange and White as that adopted by the Complainant. Such acts of the Respondent are bound to lead to confusion amongst the public.
The Complainant has produced evidence of registration of the Trademark INDIA TV in its favour given by the Trademark Registry. The Respondent has registered the disputed domain name on September 16, 2016 incorporating in it the Trademark INDIA TV of the Complainant. The Complainant has not granted the Respondent permission or a license of any kind to use its Trademark and register the disputed domain name . Such unauthorized registration by the Respondent suggests opportunistic bad faith. In view of these facts, use of the Trademark in the disputed domain name is likely to cause confusion as to source, sponsorship, or affiliation, which constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy. The Respondent’s true purpose in registering and using the disputed domain name which incorporates the entire Trademark of the Complainant is, in the Panel’s view, to capitalize on the reputation of the Trademark.
The Panel therefore finds that the disputed domain name has been registered and is being used by the Respondent in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, be transferred to the Complainant.
Dr. Ashwinie Kumar Bansal
Sole Panelist
Date: June 7, 2018
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