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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fisher Broadcasting Company dba Komo 4 v. Upiter
Case No. D2001-0788
1. The Parties
The Complainant is Fisher Broadcasting Company, dba KOMO 4, of 2001 Sixth avenue, Suite 3425, Seattle Washington 98121, USA, a corporation registered under the laws of Washington State, USA.
The Respondent is Upiter of Volkov Per. 6-12, Moscow, RU 253012, Russia.
2. The Domain Name and Registrar
The domain name at issue is <komo4.com>, registered with BulkRegister.com, Inc. of 7 East Redwood Street, Baltimore, MD21202, USA.
3. Procedural History
(1) The Complaint in Case D2001-0788 was filed in hardcopy on June 14, 2001, and by e-mail on June 25, 2001. It was notified to the Respondent on June 21, 2001.
(2) The WIPO Arbitration and Mediation Center has found that:
- the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules for the Uniform Domain Name Dispute Resolution Policy;
- payment for filing was properly made;
- the Complaint complies with the formal requirements;
- the Complaint was properly notified in accordance with the Rules, paragraph 2(a);
- a Response to the Complaint was not filed in due time; and that
- the Administrative Panel was properly constituted.
As Panelist, I accept these findings.
(3) As Panelist, I submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
(4) The date scheduled for issuance of a decision is August 17, 2001.
(5) No extensions have been granted or orders issued in advance of this decision.
(6) The language of the proceedings is English.
4. Factual Background
(1) The Complainant operates twelve television stations in the Western United States and the State of Georgia, each of which uses "Komo" in its name. The station in Seattle has the name "Komo 4" (since it is broadcast on Channel 4). It has used that name in various forms since 1953. In the last three years its news program has been marketed as "Komo 4" and "Komo 4 News". For some 75 years the Complainant has also operated numerous radio stations in the north-western United States using "Komo" as its identifying mark. Adequate evidence of this usage has been provided.
(2) The Complainant has been the registered proprietor of the US trade mark, "Komo", for broadcasting services, and the mark, "Komo 4 Time Saver Traffic", for news program entertainment featuring traffic reports, since March 28, 2000.
(3) The Respondent apparently registered the domain name at issue on December 30, 2000.
5. Parties’ Contentions
The Complainant asserts the following:
(1) It has a well-established reputation as a radio and television broadcaster known by the names and marks, "Komo" and "Komo 4". This is underpinned by the registration of the US marks referred to above.
(2) The domain name in issue is in essentials identical with "Komo 4" and is likely to be confused with "Komo", leading consumers to believe that the domain name and associated website are affiliated, sponsored or approved by the Complainant or its television station.
(3) This likelihood of confusion has in practice been confirmed since the existence of a website associated with the domain name was drawn to the Complainant's attention by an Internet user who used the domain name in order to find the Complainant's website. That user reported that instead he "got a barrage of porn" and related offers.
(4) Complainant's counsel confirmed that the domain name resolved to a website at www.centerfind.com and did confront a visitor with windows which he described as relating to spurious and offensive business propositions. These were difficult to escape by exiting, being an example of so-called "mousetrapping". Similar advertising has since persisted by email, apparently from the same or related sources. Evidence of these practices has been supplied to the Panel.
(5) The Respondent has no rights or legitimate interest in the domain name at issue. It has no licence to use the Complainant's marks and it uses the domain name merely to inveigle unsuspecting visitors onto another site from which it is then difficult to escape – a practice which may well annoy and therefore deflect users from finding the Complainant's website.
(6) The same practice demonstrates that the Respondent has registered and is using the domain name in bad faith, since its entrapment of users will generate income for the Respondent out of conduct which tarnishes the Complainant's marks. In addition, the Centrefind.com website also draws in users through numerous other domain registrations which contain the trade marks, or evident misspellings of the trade marks, of other well–known enterprises. This demonstrates a pattern of objectionable conduct which has the consequence, in this case, of preventing the Complainant from reflecting its trade marks in corresponding domain names.
The Respondent, although duly notified of this dispute, has not chosen to submit a response.
6. Grounds for Decision
Under the UDNDRP, no complaint can succeed unless there is an applicable dispute in accordance with the three-fold test specified in Paragraph 4(a). The first of these requirements is that the Respondent's domain name in issue is identical with or confusingly similar to a trademark or service mark in which the complainant has rights.
Given the summary nature of the Dispute Resolution procedure, there must be clear evidence that this is so. The Complainant has demonstrated its long-term, substantial use of "Komo" and "Komo 4" as marks associated with its broadcasting services, coupled with the registered marks which it holds. Accordingly I find that a sufficient case has been made out on the first ground. Some account can be taken of the actual case of initial confusion of which evidence has been given. But in addition to that, there is an inherent likelihood that others will be confused into thinking that the domain name may lead to the Complainant's site.
The evidence concerning the Respondent's practice is also germane to the second and third requirements for establishing a complaint under the UDNDRP. An innocent searcher for the Complainant's site may use the domain name in issue and thereby become ensnared into a related site which offers offensive products and services and which it is difficult to escape from. Accordingly it is difficult to imagine what right or legitimate interests in the domain name the Respondent could possibly have. Likewise, the Respondent must be taken to have acted in bad faith in obtaining and using the domain name in suit. In this respect this case is very similar to a succession of decisions under the UDNDRP of which the most recent is WIPO Case D2000-1803, NCRAS Management v. Cupcake City and Zuccarini. The use of similar domain names featuring the names of other well-known corporations, or names confusingly similar, underscores this finding.
For these reasons, the Panel decides, in accordance with the Uniform Domain Name Dispute Resolution Policy, Paragraph 4, that the domain name <komo4.com> should be transferred forthwith to the Complainant.
William R. Cornish
Dated: August 13, 2001