Administrative panel decision al Jazeera Media Network V. James Harden




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ARBITRATION
AND
MEDIATION CENTER



ADMINISTRATIVE PANEL DECISION

Al Jazeera Media Network v. James Harden

Case No. DTV2014-0003



1. The Parties

The Complainant is Al Jazeera Media Network of Doha, Qatar, internally represented.


The Respondent is James Harden of Mattapan, Massachusetts, United States of America (“USA”).


2. The Domain Name and Registrar

The disputed domain name is registered with Mesh Digital Limited (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2014. On September 30, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 6, 2014, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 9, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 29, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 30, 2014.
The Center appointed Assen Alexiev as the sole panelist in this matter on November 6, 2014. 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 global media corporation. It started operations in 1996 with a single satellite television channel broadcasted in Arabic. In 2000, the Complainant launched its Arabic website at “www.aljazeera.net”. In 2001, the Complainant was the only major news network to cover the war in Afghanistan from its bureau in Kabul, which made it well known in the USA and around the world. In 2003, the Complainant launched an English language version of its website. In 2006, the Complainant launched its English language TV channel Al Jazeera English. This TV channel was freely broadcasted by satellite and online on “www.aljazeera.com” in the USA in the period 2006 to 2012. The Al Jazeera Arabic News Channel continues to be freely accessible in the USA through satellite and online live streaming on “www.aljazeera.net”.


The Complainant is the owner of the following trademark registrations for AL JAZEERA (the “AL JAZEERA trademark”):
- The word trademark AL JAZEERA, registered in Qatar on October 17, 2006 for goods and services in International Class 9 with registration number 37020;
- The word trademark AL JAZEERA, registered in Qatar on October 17, 2006 for goods and services in International Class 16 with registration number 37021;
- The word trademark AL JAZEERA, registered in Qatar on October 17, 2006 for goods and services in International Class 35 with registration number 37022;
- The word trademark AL JAZEERA, registered in Qatar on October 17, 2006 for goods and services in International Class 38 with registration number 37023;
- The word trademark AL JAZEERA, registered in Qatar on October 17, 2006 for goods and services in International Class 41 with registration number 37024; and
- The word trademark Al JAZEERA with registration number 3,820,209, registered in the USA on July 20, 2010 for goods and services in International Classes 9, 16, 35, 38 and 41.
The Complainant uses the AL JAZEERA trademark globally in conjunction with television, video broadcasting, news, entertainment, printing, advertising and publicity services.

The disputed domain name was registered on January 22, 2008.



5. Parties’ Contentions

A. Complainant

The Complainant submits that the disputed domain name is identical to the AL JAZEERA trademark, as the “.tv” country code Top-Level Domain (“ccTLD”) has no bearing in determining the similarity between the trademark and the disputed domain name. The word “Al Jazeera” is an Arabic name and has no meaning in English. It has become synonymous with Arabic TV channel in the USA because of the Complainant’s TV broadcasting services.


According to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has neither authorized nor licensed the Respondent to use the AL JAZEERA trademark as a domain name. The Respondent has never used or prepared to use the disputed domain name to offer goods or services. There is no active website at the disputed domain name. The Complainant is the only entity that is known by the name Al Jazeera in connection with offering free-to-air TV channels in the USA and all around the world. The Respondent has never been known with the name Al Jazeera, as his name is James Harden according to publicly available WhoIs records.
The Complainant contends that the disputed domain name has been registered and used in bad faith by the Respondent. The Respondent is the registrant of 108 other domain names, including 17 “.tv” domain names, and several of these domain names are similar to registered trademarks of third parties. The Respondent must have known that the AL JAZEERA trademark is owned by the Complainant, and by registering a domain name identical to that trademark, the Respondent has willfully infringed the Complainant rights in the trademark. With its actions, the Respondent creates confusion to the online consumers and visitors who go online to look for the Complainant’s free TV channels.
Finally, the Complainant submits that on July 15, 2014, it contacted the Respondent by sending a cease and desist letter, but the Respondent never replied to this letter.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.




6. Discussion and Findings

Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:


(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present his case.
According to Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In the event of a default, under Rules, paragraph (14)(b): “[…] the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004: “[h]ere, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” Further, as stated by the panel in Viacom International Inc. v. Ir Suryani, WIPO Case No. D2001-1443: “[s]ince the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant […]. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In this administrative proceeding, the Respondent’s default entitles the Panel to conclude that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take its decision on the basis of the statements and documents submitted by the Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.

A. Identical or Confusingly Similar

The Complainant has provided evidence and has thus established its trademark rights in the AL JAZEERA trademark.


The disputed domain name incorporates the Complainant’s AL JAZEERA trademark in its entirety. This trademark has achieved global popularity in the field of news television. The Panel notes that there is a common practice under the Policy to disregard, in appropriate circumstances, the ccTLD such as the “.tv” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Moreover, the Panel finds that the “.tv” suffix may also to be taken into account, as it suggests that the disputed domain name is related to television and thus increases the chances for confusion between the disputed domain name and the Complainant’s trademark.
Therefore, the Panel finds that the disputed domain name is identical to the AL JAZEERA trademark in which the Complainant has rights, and the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name.

B. Rights or Legitimate Interests

The Complainant is required to make at least a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a showing, the Respondent may provide evidence to demonstrate that he has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).


The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that it has neither authorized nor licensed the Respondent to use the AL JAZEERA trademark, that the Respondent has never used or prepared to use the disputed domain name to offer goods or services, and that the Respondent has never been known with the name Al Jazeera, as his name is different. Thus, Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent, although given a fair opportunity to do so, chose not to present to the Panel any arguments in his defense in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any legitimate reason for the acquisition and use of the disputed domain name, he could have brought it to the attention of the Panel. In particular, the Respondent has failed to contend that any of the circumstances described in Policy, paragraph 4(c) is present in his favor.
Apart from the factual contentions of the Complainant, the only other sources of information about the Respondent are the WhoIs information, provided by the Registrar, and the content of the website at the disputed domain name. The WhoIs information contains no evidence that the Respondent is commonly known by the disputed domain name. The disputed domain name is confusingly similar to the AL JAZEERA trademark of the Complainant, and it resolves to a parking page maintained by the Registrar.
The Complainant broadcasts globally a popular television channel. The disputed domain name is identical to the Complainant’s AL JAZEERA trademark and is registered in the “.tv” ccTLD, widely associated with television. This combination has a strong potential to cause confusion in Internet users. The Respondent has not even attempted to show any rights or legitimate interests in the disputed domain name or any justification for his registration especially in the “.tv” ccTLD. In view of the above, it is highly likely that the Respondent was well aware of the Complainant and its goodwill at the time of the registration of the disputed domain name and that his registration was made specifically with the Complainant and its popularity in mind. In the Panel’s view, in the circumstances, such conduct of the Respondent cannot be regarded as giving rise to rights or legitimate interests in the disputed domain name.
Therefore, the Panel finds that the Complainant’s prima facie case has not been rebutted, and that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:


“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The provisions of paragraph 4(b) of the Policy are without limitation, and bad faith registration and use may be found on grounds otherwise satisfactory to the Panel.
As contended by the Complainant, the AL JAZEERA trademark has no meaning in English, and it has gained strong worldwide reputation in relation to television as a result of the efforts of the Complainant. The AL JAZEERA trademark is registered in the USA, where the Respondent is located, and television broadcasting services are included in its scope of protection. The disputed domain name is registered in the “.tv” ccTLD – a domain that is generally associated with “television”, which makes it a popular and attractive domain for any businesses active in making of broadcasting video and television programs. Thus, the disputed domain name is itself strongly associated with television – the very service for which the AL JAZEERA trademark has gained wide recognition. Therefore, the registration of the disputed domain name in this ccTLD is highly likely to cause confusion among Internet users looking for the Complainant or for online TV channels.
In these circumstances, the Panel cannot conceive of any good faith use of the well-known AL JAZEERA trademark, fully incorporated in a domain name registered in the “.tv” ccTLD by a third party unrelated to the Complainant and acting without the consent of the Complainant. Any such use is likely to be illegitimately exploiting the Complainant’s goodwill and causing confusion.
The Respondent does not appear to have actively used the disputed domain name. The Panel accepts that such conduct could be explained by the lack of possible good faith use of the disputed domain name and by an expectation of the Respondent that the Complainant would become interested in the disputed domain name at some point in time. This eventually happened in 2014, and the Complainant sent a cease and desist letter to the Respondent. The principle of good faith requires a response to such letter, but the Respondent did not reply or take any steps to transfer the disputed domain name to the Complainant or to cancel his registration. The Panel regards this conduct of the Respondent as bad faith inactive use, preventing the Complainant from legitimately reflecting the AL JAZEERA trademark in the “.tv” ccTLD, which supports a finding of bad faith registration and use of the disputed domain name in the meaning of paragraph 4(a)(iii) of the Policy.
Therefore, and in the lack of any allegation or evidence to the contrary, the Panel finds that the Respondent has registered and used the disputed domain name 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.



Assen Alexiev

Sole Panelist



Date: November 20, 2014



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