Administrative panel decision cable News Network, Inc. (Cnn) V. Vinko Peric / cnn rtv




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Cable News Network, Inc. (CNN) v. Vinko Peric / CNN RTV

Case No. D2015-1434



1. The Parties

1.1 Complainant is Cable News Network, Inc. (CNN) of Atlanta, Georgia, United States of America, represented by Kilpatrick Townsend & Stockton LLP, United States of America.


1.2 Respondent is Vinko Peric / CNN RTV of Gradiska, Bosnia and Herzegovina.


2. The Domain Name and Registrar

2.1 The disputed domain name is registered with Tucows Inc. (the “Registrar”).




3. Procedural History

3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2015. On August 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 14, 2015, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.


3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 21, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 10, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 11, 2015.
3.4 The Center appointed David Perkins as the sole panelist in this matter on September 18, 2015. 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.

3.5 On October 13, 2015 the Center sent the following communication to Respondent on behalf of the Panel:


ADMINISTRATIVE PANEL

PROCEDURAL ORDER NO. 1

Cable News Network, Inc. (CNN) v. Vinko Peric / CNN RTV

Case No. D2015-1434


The Panel has carefully reviewed the Center’s notice delivery records. While the Panel determines that the Center has fulfilled its notice obligations under paragraph 2(a) of the Rules, based on an apparent “whitelisting” response received by the Center in reply to one of its notice emails, the Panel considers that there is a possibility that the Respondent may not have received one of the Center’s notification emails. In an abundance of caution, and for the avoidance of any doubt regarding the Respondent’s receipt of notice of this dispute (despite the Panel’s finding that the Center has discharged its obligation under the Rules), the Panel orders the Center to re-notify the Complaint, annexes and the Notification of Complaint and Commencement of Administrative Proceeding document to the Respondent at the following email addresses:
[…]
The Respondent will have five calendar days from the date of this notice in which to make any intention to take part in this proceeding known.
Accordingly, the decision due date is extended… [and a] possible further extension may be required in case of any appearance by the Respondent.
The Center re-notified the Complaint and the due date of October 18, 2015 passed without any response from Respondent.
4. Factual Background
4.A Complainant
4.A.1 Complainant is the well known international media and entertainment company and one of the world’s leading news and information providers. It is a division of Turner Broadcasting System, Inc., a Time Warner Company. In 1980 Complainant launched CNN in the United States, which was the first television channel to provide 24-hour news and was the first all-news channel in the United States.
4.A.2 Today, Complainant operates two dozen news and information services across cable, satellite, radio, wireless devices, and the Internet, available to more than two billion people in over 200 countries and territories worldwide. It has some 4,000 employees worldwide, 45 editorial operations around the world and uses a network of 38 satellites. Its news and information services are available in six languages across all major television, Internet and mobile platforms.
4.A.3 CNN International was launched in September 1985 as a global 24-hour news network with its main branch in London. By 1997 CNN International was organised into five separately scheduled channels. CNN International Europe/Middle East/Africa; CNN International Asia Pacific; CNN International South Asia; CNN International Latin America; and CNN International North America. By 2006 CNN International was ranked by the European Media & Marketing Survey as the leading international news channel.
4.A.4 After the break up of Yugoslavia, in 2000 Complainant’s CNN news broadcasts became available in Serbia and in Bosnia and Herzegovina in 2001. Currently, Complainant’s broadcasts reach over 950,000 households in Serbia and over 430,000 households in Bosnia and Herzegovina.


Complainant’s CNN trademarks
4.A.5 Complainant owns more than 778 trade mark registrations and applications for the CNN mark and variants worldwide. In the United States the CNN mark was filed on October 6, 1989 and was registered in Class 38 on May 2, 1990 based on first use in commerce dating from February 13, 1985. The Complaint exhibits that registration together with variants including CNN GO; CNN FILMS; CNN MONEY; and CNN NEWS SOURCE. Also exhibited to the Complaint as evidence of counterpart registrations of the CNN trade mark in territories outside the United States are registrations in Canada (1985); Australia (2002); Hong Kong, China (1993); Brazil (1990); and the European Union (2003). Complainant’s trade mark registrations for CNN issued in Serbia in 1993 and in Bosnia and Herzegovina in 2003.
Complainant’s CNN website
4.A.6 Complainant and its parent company began using the domain name for its CNN website in September 1993. Exhibited to the Complaint are print outs of web pages from “www.cnn.com” and the CNN International website for the years 2004 to 2015. The website “www.cnn.com” received over 135 million visits per month in 2014. It is currently ranked as one of the top three news websites in the world
4.A.7 The Complaint states that, in addition to the domain name,  Complainant and its parent company and subsidiaries own and/or use in connection with news and entertainment services over 1,000 domain names that incorporate the CNN trade mark. By way of example, exhibited to the Complaint are WhoIs printouts for <cnn.eu>; <cnnnews.eu>; <cnnnewsource.eu>; <cnneurope.eu>; < cnnmobile.eu>; <cnn.co.uk>; < cnn.com.fr>; ; money.com> and others, all created before the disputed domain name was registered.
4.B Respondents
4.B.1 In the absence of a Response, what is known of Respondents is contained in the Complaint and certain of its Exhibits. Respondent, Vinco Peric, registered the disputed domain name in July 2008.

4.B.2 Exhibited to the Complaint are print outs of the single web page to which that domain name resolved over the years 2009 and 2010 to 2012. There was apparently no web page at some [oint in 2010. The single web page contained the mark CNN in an oval device and below the words “Centralne Nacionalne Novosti”, which translated are “Central National News”. The web page also contained the notation “eksperimentalna faza”, meaning “experimental phase”.


4.B.3 In March 2013 Respondent began using the disputed domain name to resolve to a website offering news and information under the name CNN in an oval device followed by the words “Centralne Nacionalne Novosti”. According to a separate website operated by Respondent at , Respondent explained that he had launched an initial website in 2008 and that “After four years preparation and work” had finally launched a new television program called “CNN” on March 8, 2013. Print outs from the two websites are exhibited to the Complaint, together with a WhoIs print out for the domain name showing the registrant as the Respondent, Vinko Peric.
4.B.4 A print out from Respondent’s Facebook account, which is also exhibited to the Complaint, describes the television station associated with the disputed domain name as “CNN u Republici Srpskoj”, which Complainant says translates as “CNN in the Republic of Serbia”.
4.B.5 The Complaint also exhibits evidence that in 2013 Respondent, Vinko Peric, registered the business name CNN d.o.o. Gradiska in Bosnia and Herzegovina at the same address as that given for both the disputed domain name and the domain name.
4.B.6 Having discovered Respondent’s use of the disputed domain name, on May 20, 2013 Complainant’s counsel sent a Cease and Desist letter to Respondent. By his reply dated May 27, 2013 Respondent refused to cease use of the CNN name and mark. The exhibits containing this exchange are in Bosnian but a rough translation into English of Respondent’s reply is provided. However, at some date between June 1 and September 29, 2013 Respondent changed the website to which the disputed domain name resolved by substituting for “CNN” the Cyrillic equivalent. The Bosnian language uses both the Latin and Cyrillic alphabets.
4.B.7 Shortly thereafter Complainant filed a complaint with the Trade Inspectorate in Bosnia and Herzegovina, which ruled in October 2013 ordering CNN d.o.o. Gradiska to change its name and imposed a fine. Although that decision was overturned on appeal on jurisdictional grounds, ultimately the business name was deleted and replaced by “Centralne Nacionalne Novosti” d.o.o.
4.B.8 Then, in March 2014 Complainant learned that in late 2013 Respondent had sold to TV1 d.o.o. (“TV1”) programming and other assets of his company, Vikom TV.  TV1 is a commercial infotainment company in Bosnia and Herzegovina. Respondent, however, retained the disputed domain name. TV1 did not continue use of the CNN name and mark and in around February 2015 attempted to obtain transfer of the disputed domain name for the benefit of Complainant. Respondent, however, refused to transfer the disputed domain name and continues to use that domain name to resolve to a web page operated by Centralne Navionalne Novosti d.o.o. A print out from that web page in Bosnian is exhibited. Complaint states that this provides links to third party web sites such as “www.istinito.com”, “www.rtrs.tv” and others which contain content unrelated to CNN and, in some cases, advertisements for various products and services.

5. Parties’ Contentions
5.A Complainant
5.A.1 Identical or Confusingly Similar
5.A.1.1 Complainant’s case is that it has rights in the CNN trade mark and that the disputed domain name is confusingly similar since it incorporates that mark in its entirety. The addition of the letters “RS”, which are an abbreviation for Republic of Srpska (Bosnia and Herzegovina), merely adds to the likelihood of confusion as suggesting that it is Complainant CNN’s affiliate in Bosnia and Herzegovina. Complainant cites a number of Decisions under the Policy in which the addition of a geographical identifier to a well known trade mark has been held insufficient to avoid a finding of confusing similarity. For example, <playboyturkey.com>, <attmexico.com> and <ebaykorea.com> were all held to be confusingly similar to the trade marks, PLAYBOY, AT&T and EBAY.
5.A.2 Rights or Legitimate Interests
5.A.2.1 First, Complainant states that it has not licensed or otherwise authorised Respondent to use the CNN trade mark.
5.A.2.2 Second, given the well known status of the CNN name and mark in Europe at the time the disputed domain name was registered in July, 2008, Complainant says that it is inconceivable that Respondent was unaware of its television and online news service. A simple Internet search would have immediately disclosed Complainant’s worldwide use of the CNN mark for its news services, including its “www.cnn.com” website. Basic due diligence such as making a trade mark search would also have revealed Complainant’s registrations of the CNN mark in Serbia (1993) and Bosnia and Herzegovina (2003). Further, registration of the Business Name, CNN d.o.o. Gradiska did not entitle Respondent to use the CNN trade mark in the disputed domain name. Consequently, Complainant says that Respondent’s use of the disputed domain name is neither a bona fide nor a fair use.
5.A.2.3 Further, Complainant says that Respondent’s use of the disputed domain name to resolve to a website providing news and information related services, which are precisely the services for which Complainant through its CNN mark is so well known, was clearly neither a legitimate noncommercial or fair use of that domain name. Rather, it was, Complainant says, designed to take advantage of Complainant’s very considerable reputation by misleading Internet users into believing that Respondent’s website came from or was associated with Complainant. 

5.A.2.4 Still further, Complainant says that the current use of the disputed domain name for a purported “news” website providing links to third party sites and advertisements does not give rise to a legitimate interest.


5.A.2.5 The Complaint cites decisions under the Policy in support of each of the above assertions and submits that they conclusively demonstrate that Respondent cannot claim rights to or legitimate interests in the disputed domain name. 
5.A.3 Registered and Used in Bad Faith
5.A.3.1 Complainant’s case is as follows. First, the fact that the disputed domain name wholly incorporates its CNN trade mark, is confusingly similar to that mark and was registered long after that mark became well known indicates bad faith.
5.A.3.2 Second, Respondent - who apparently owns the television company, Vikom TV - must have been fully aware of Complainant’s rights in the CNN mark when the disputed domain name was registered. That, coupled with using the disputed domain name for a website providing news related services similar to those provided by Complainant, is - Complainant says - a bad faith use designed to capitalise on the valuable goodwill associated with the CNN mark.
5.A.3.3 Third, Complainant says that Respondent’s bad faith is evidenced by his current use of the disputed domain name for commercial gain by leveraging the notoriety of the CNN mark to attract users to a website which offers services that compete directly with those offered by Complainant under its CNN mark. Complainant cites several decisions under the Policy where similar conduct has been found to constitute bad faith use, quoting from Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., WIPO Case No. D2001-0075, “The very fact of registering such a famous mark to use in the same business of the Complainant reeks of bad faith.” The Complaint also quotes from Veuve Cliquot Ponsardin, Maison Fondee en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163, in which bad faith was found where a domain name “is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith.”
5.A.3.4 Complainant cites other decisions under the Policy to support its case that the circumstances of this case plainly demonstrate bad faith under paragraph 4(b)(iv) of the Policy.
5.A.3.5 Complainant points to Respondent’s failure to respond positively to Complainant’s efforts to persuade him to surrender the disputed domain name summarised in paragraphs 4.B.6 to 8 above as also indicative of bad faith.
5.A.3.6 Finally, Complainant says that the similarity of the disputed domain name coupled with the similarity of the content of the website to which that domain name resolves will, inevitably, lead to a likelihood of initial confusion amongst Internet users into mistakenly believing that the disputed domain name is connected to or associated with Complainant. That, Complainant says, also demonstrates bad faith.
5.B Respondent
As noted in paragraph 3 above, no Response has been filed by Respondent. 


6. Discussion and Findings



6.1 The Policy paragraph 4(a) provides that Complainant must prove each of the following in order to succeed in this administrative proceeding
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and


(iii) that the disputed domain name has been registered and is being used in bad faith.
6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate Respondent’s rights or legitimate interests in the disputed domain name.
6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognizes that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy.
A. Identical or Confusingly Similar
6.5 Complainant clearly has rights in the CNN trade mark, which is a very well known mark.
6.6 Addition of the letters “rs” to the disputed domain name, which incorporates the CNN mark in its entirety, is insufficient to avoid a finding of confusing similarity.
6.7 In the circumstances, the Complaint meets the requirements of paragraph 4(a)(i) of the Policy.
Rights or Legitimate Interests
6.8 From the facts set out in Section 4.B above, the submissions summarised in Section 5.A.2 above are well made out and Respondent has not demonstrated rights to or legitimate interests in the disputed domain name under paragraph 4(c) of the Policy, or otherwise. The Panel finds that, on the basis of the evidence submitted, none of the circumstances identified at paragraph 4(c) of the Policy apply. The Complaint meets the requirements of paragraph 4(a)(ii) of the Policy.
Registered and Used in Bad Faith
6.9 Similarly, from the facts set out in Section 4.B above, the submissions summarised in Section 5.A.3 are well made out and clearly demonstrate bad faith registration and use under paragraph 4(b)(iv) of the Policy. The Complainant meets the requirements of 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 disputed domain name <cnnrs.com> be transferred to the Complainant.



David Perkins

Sole Panelist



Dated: October 19, 2015



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