The Complainant is beIN Media Group L.L.C, Qatar, represented by Gevers & Ores, France.
The Respondent is Feras Mostafa, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 8, 2021. On April 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 12, 2021, the Registrar 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 April 16, 2021 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 April 19, 2021. 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 21, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 11, 2021. The Response was filed with the Center on May 11, 2021. The Center appointed Nayiri Boghossian as the sole panelist in this matter on May 27, 2021. 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 a Qatari media group known for streaming sporting events and entertainment. The Complainant has registered the trademark BEIN, BEIN SPORTS, and BEIN SPORT in many jurisdictions. For example, the Complainant owns the following registrations: - Saudi Arabia trademark registration No. 1438018368 for the trademark BEIN SPORTS filed on May 4, 2017; - Saudi Arabia trademark registration No. 1438018375 for the trademark BEIN (device mark) filed on May 4, 2017; - United States trademark registration No. 5273645 for the trademark BEIN SPORTS registered on August 29, 2017; - Kuwaiti trademark registration No. 138647 for the trademark BEIN SPORTS registered on August 4, 2014; - European Union trademark registration No. 010617082 for the trademark BEIN SPORT registered on May 24, 2013; and - United States trademark registration No. 5066623 for the trademark BEIN SPORT registered on October 24, 2016. The disputed domain name was registered on June 24, 2019, and resolves to a website, which seems to offer subscriptions for similar services offered by the Complainant. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark. The Complainant’s trademark BEIN is well known as established by UDRP panels. The Complainant owns a number of domain names using its trademarks. The disputed domain name is identical to the Complainant’s trademark BEIN SPORT, trade name and domain names. The disputed domain name consists of the words “bein” and “sport”. The Top-Level Domain “.pro” should generally be ignored when assessing confusing similarity as established by prior UDRP decisions. The disputed domain name shows a clear visual, phonetical and conceptual identity with the Complainant’s trademark creating the likelihood of confusion. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with nor authorized by the Complainant to use its trademark. The use of the disputed domain name cannot be considered a bona fide offering of goods or services. Specifically, the Respondent uses the same logo and color on the website attached to the contested domain name as the one actually used by the Complainant on its genuine website. The Respondent is not making any legitimate noncommercial or fair use of the disputed domain name. The disputed domain name is used to propose sports programs. Legitimate rights or bona fide use cannot exist where there is an illegitimate use of another’s rights. The Respondent must have been aware of the Complainant’s trademark. The Complainant contends that the disputed domain name was registered and is being used in bad faith. As per prior UDRP decisions, the mere registration of a domain name that is identical or confusingly similar to a well-known trademark creates a presumption of bad faith. The Respondent must have been aware of the Complainant’s trademark. The website to which the disputed domain name resolves uses a color identical to the color used by the Complainant on its own website and the website to which the disputed domain name resolves is used to promote sports programs. The Respondent is also using a sign that is highly similar to the Complainant’s trademark. A cursory Internet search would have demonstrated to the Respondent that the Complainant owns several registrations for the trademarks BEIN or BEIN SPORT and domain names containing “BeinSport”. The Respondent is attempting to attract Internet users to its website for commercial gain and by creating confusion with the Complainant and its trademark. The use of a privacy service may be a further sign of bad faith conduct in the circumstances. B. Respondent The Respondent did not file a formal Response. In his informal Response, the Respondent stated: “Hi, The Complainant owns trademark registrations for the trademark BEIN and BEIN SPORTS, which is also sometimes registered as BEIN SPORT. The Panel is satisfied that the Complainant has established its ownership of the trademark BEIN and BEIN SPORT written with an “s” or without. The disputed domain name incorporates the Complainant’s trademark BEIN SPORT in its entirety. It is established by prior UDRP panels that when a domain name incorporates a complainant’s registered trademark, such incorporation is sufficient to establish identity or confusing similarity for the purposes of the Policy. The Top-Level Domain “.pro” should generally be ignored when assessing confusing similarity as established by prior UDRP decisions. Consequently, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant and that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, a complainant must make at least a prima facie showing that a respondent does not have any rights or legitimate interests in the disputed domain name. Once such showing is made, the burden of production shifts to the respondent. In the instant case, the Complainant asserts that the Respondent is not affiliated with nor authorized by the Complainant to use its trademark. Therefore, it is for the Respondent to prove that it has rights or legitimate interests. According to the Policy, the use of the disputed domain name would be legitimate if it is used in connection with a bona fide offering of goods or services. The website to which the disputed domain name resolves offers subscriptions for similar services offered by the Complainant, using a color and logo identical to the one of the Complainant. While the composition of the disputed domain name, and the appearance of the website points towards a case of impersonation, there may be an argument that the disputed domain name is being used with a bona fide offering of services and the current dispute should be analyzed in line with the Oki Data test. According to the Oki Data test, the following requirements have to be met (see Oki Data Americas, Inc v. ASD, Inc., WIPO Case No. D2001-0903); 1. “Respondent must actually be offering the goods or services at issue”; 2. “Respondent must use the site to sell only the trademarked goods”; 3. “The site must accurately disclose the registrant’s relationship with the trademark owner”; and 4. “The Respondent must not try to corner the market in all domain names, thus depriving the trademark owner of reflecting its own mark in a domain name”. The Panel analyzes each of these requirements below: (a) Requirement No. 1: This requirement is met in the instant case as the disputed domain name resolves to a website which offers subscription services. (b) Requirement No. 2: The website to which the disputed domain name resolves offers subscriptions for similar services offered by the Complainant. Logos of other TV channels such as National Geographic also appear on the website. These are not channels owned by the Complainant. As a result, it appears that the disputed domain name resolves to a website that promotes services of competitors of the Complainant. Such use has been found by prior UDRP panels as not being bona fide (see Experian Information Solutions, Inc v. Credit Research, Inc.WIPO Case No. D2002-0095). (c) Requirement No. 3: The website to which the disputed domain name resolves does not disclose the relationship with the Complainant. (d) Requirement No. 4: This requirement is met as there are no numerous registrations by the Respondent of domain names containing the trademark of the Complainant. Given that some of the requirements were not met, the Respondent has not been able to prove any rights or legitimate interests in the disputed domain name. Moreover, the Panel finds that the disputed domain name carries a high risk of implied affiliation. See section 2.5.1 WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel further notes the use of the disputed domain name, and finds it likely that Respondent was seeking to take advantage of an implied affiliation with the Complainant, which is not a use that could give rise to rights or legitimate interests. Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Respondent must have been aware of the Complainant’s trademark as it provides services similar to the Complainant’s services. The disputed domain name resolves to a website, which seems to offer subscriptions for similar services offered by the Complainant. It also seems to offer services of competitors. The fact that it offers competing services is an indication of bad faith. As such, the disputed domain name suggests affiliation with the Complainant in order to attract consumers and offer competing services, which is an act of bad faith (see Intex Recreation Corp. v. RBT, Inc., Ira Weinstein, WIPO Case No. D2010-0119, MasterCard International Incorporated v. Global Access, WIPO Case No. D2008-1940). Such conduct falls squarely within the meaning of paragraph 4(b)(iv) of the Policy, and accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy. 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, Nayiri Boghossian
Thank you for your interesting , and please suspend dispute because we are bein agent in kuwait, and all our works are legal And no one customer has ever complained about us, and work hard to satisfy every customer And if you have and complaint from any customer or platform like (Paypal - Master - Visa - Enet), please show us, because we fulfill all orders in same hour (less than 15 minute) Again, all our works are legal, so please suspend dispute.
Thank you so much.” 6. Discussion and Findings A. Identical or Confusingly Similar
Sole Panelist
Date: June 10, 2021
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