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and Mediation Center
The Belo Company , Belo Investments II , Belo Corp. v. Web Master
Case No. D2006-0787
1. The Parties
The Complainants are The Belo Company , Belo Investments II , Belo Corp., Wilmington, Delaware, United States of America, represented by Dow Lohnes, PLLC, of Washington, D.C., United States of America.
The Respondent is Web Master, Georgetown, Cayman Islands, United Kingdom of
Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <wfaa8.com> is registered with Dotster, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 23, 2006. On June 26, 2006, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the domain name at issue. On June 27, 2006, Dotster, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 June 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 20, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 21, 2006.
The Center appointed Daniel J. Gervais as the sole
panelist in this matter on July 21, 2006. 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 Belo Company, a Delaware business trust, is wholly owned by Belo Investments II, Inc., which in turn is wholly owned by Belo Corp.
Belo Corp. is the owner of the television station known as wfaa-tv, received on channel 8 in Dallas, Texas, United States of America. The Belo Company is the owner of the mark WFAA-TV, registered in the United States since at least 1995. The Complainants operate a website accessible at “www.wfaa.com”. The website and wfaa station broadcast, inter alia, information on weather, traffic, and business in the Dallas, Texas area.
The Respondent registered the domain name in 2003. As of May 9, 2006, the Domain Name resolved to a website containing a list of sponsored links relating to news, travel, weather, traffic, and business in the Dallas, Texas, metropolitan area, and other sponsored results generally relating to dating, entertainment, and finance.
The three Complainants have asked to be treated as
a single entity for the purposes of this administrative proceeding. The Panel
will therefore refer to the three Complainants in the singular as “the
5. Parties’ Contentions
The Complainant asserts, first, that the domain name is confusingly similar to Complainant’s WFAA-TV mark because it is virtually identical to such mark, the only difference being the removal of “-TV” and addition of “8”, which increase the likelihood of confusion because wfaa-tv broadcasts on a television (or “TV”) frequency on Channel 8 in the Dallas, Texas area. The potential for confusion is further exacerbated because the domain name resolved to a website that contained links related to news, travel, weather, traffic, entertainment, and business in the Dallas, Texas area, and the Complainant operates a television broadcasting station and website that provides news, weather, traffic, and entertainment as a main component of the services provided to listeners and Internet users in the same area.
The Respondent is not a licensee of the Complainant, nor is it authorized to use the Complainant’s WFAA-TV mark. In addition, the Respondent has not established rights or legitimate interests in the domain name by establishing use or preparations to use the domain name for any bona fide purpose. As of May 9, 2006, the domain name directed Internet users to a website that contained a list of sponsored links. There is no evidence or indication that the Respondent has ever been commonly known as “wfaa8.” Nor can the Respondent establish rights in the domain name, because it made no legitimate non-commercial or fair use of the Domain Name without intent to misleadingly divert consumers for commercial gain.
The Respondent registered the domain name to attract users looking for the Complainant’s website for its own commercial gain. Indeed, the fame and longstanding use by the Complainant of its WFAA-TV mark also support the conclusion that the Respondent’s use thereof is an opportunistic effort to trade on the Complainant’s goodwill, further evidencing use and registration in bad faith under the Policy. It is not possible to conceive of any plausible actual or contemplated active use of a domain name by the Respondent that would not be illegitimate. The Respondent has also used and registered the domain name in bad faith as part of a pattern of conduct as set forth in Paragraph 4(b)(ii) of the Policy. In a previous decision involving the Respondent, a WIPO Panel found that “the Complainant has adduced considerable evidence that the Respondent is a serial cybersquatter.”
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the Domain Name, the Complainant must prove that each of the three following elements are satisfied:
1. The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.1); and
2. The Respondent has no rights or legitimate interests in respect of the Domain Name (see below, section 6.2); and
3. The Domain Name has been registered and is being used in bad faith (see below, section 6.3).
Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.
Pursuant to Paragraph 15(a) of the Rules, the Panel shall decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate.
6.1 Is the Domain Name Identical or Confusingly Similar to a Trademark in Which Complainant has Rights?
This question raises two issues: (1) does the Complainant have rights in a trademark or service mark; and (2) is the Domain Name identical or confusingly similar to such trademark or service mark.
On the first point, the record clearly shows that Complainant has trademark rights in the WFAA-TV mark.
As to the second question, the Panel finds that the domain name is confusingly
similar to such mark. As a rule, when a domain name incorporates the distinctive
portion of a complainant’s mark and adds a generic word, that is sufficient
to establish confusing similarity for purposes of the Policy. Confusion is heightened
when the generic word added by the Respondent is descriptive of the Complainant’s
goods or services marketed in relation to the trademark. (See, e.g.,
Volvo Trademark Holding AB v. Lost in Space, SA, WIPO
Case No. D2002-0445; Arthur Guinness Son & Co. (Dublin) Ltd v. Steel
Vertigogo, WIPO Case No. D2001-0020;
Arthur Guinness Son & Co. (Dublin) Limited v. Tim Healy/BOSTH, WIPO
Case No. D2001-0026; and Alamo Rent-A-Car Management, LP v. Patrick Ory,
WIPO Case No. D2003-0461). This is the
case here as the number “8” is likely to be understood by many television
viewers in the Dallas, Texas area to refer to “Channel 8,” the channel
on which wfaa broadcasts can be received.
The Panel thus finds that the Complainant has rights in the WFAA-TV mark, and that the Domain Name is confusingly similar to such mark.
6.2 Does the Respondent Have Rights or Legitimate Interests in the Domain Name?
The Complainants submits that the Respondent has no rights or legitimate interests in the Domain Name based on the Complainant’s prior use of the WFAA-TV marks and was never authorized to use the Respondent’s marks. The Respondent, whom did not file a Response, did not dispute this contention nor provide information as to its interests to use the Domain Name.
According to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
There is no evidence before the Panel that the Respondent
has made any bona fide offering of goods or services under the name wfaa,
and the Complainant contends that the Respondent is not commonly known by the
Domain Name. There is no evidence before the Panel that the Respondent is making
a legitimate noncommercial or fair use of the Domain Name.
Consequently, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Domain Name. The Respondent has not rebutted this. Therefore the Panel finds for the Complainant in relation to the second element of the Policy.
6.3 Is There Evidence of Registration and Use of the Domain Name in Bad Faith?
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or 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 the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website 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 the Respondent’s website or location or of a product.
The Respondent registered the domain name because in all probability he knew of the Complainant and the type of services offered by the Complainant and tried to attract Internet users for commercial gain by creating a likelihood of confusion which is the result of combining the Complainant’s station call letters (WFAA) and the number of the channel on which it is broadcast, and by offering information of a similar type through a series of hyperlinks probably destined to generate revenue for the Respondent by free-riding on the Complainant’s goodwill.
In light of the above, the Panel finds that the domain
name was registered and is being used in bad faith. It is unnecessary to decide
whether the Complainant’s claim based on subparagraph (ii) is well-founded
(based on an alleged pattern by the Respondent).
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wfaa8.com> be transferred to the Complainant.
Daniel J. Gervais
Date: July 25, 2006