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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

E! Entertainment Television, Inc. v. Xinyu Liu

Case No. DTV2007-0005

 

1. The Parties

The Complainant is E! Entertainment Television, Inc., Los Angeles, California, United States of America, represented by Katten Muchin Rosenman LLP, United States of America.

The Respondent is Xinyu Liu, Hangzhou, Zhejiang, Chin.

 

2. The Domain Name and Registrar

The disputed domain name <eentertainment.tv>is registered with Network Solutions, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 21, 2007. On March 23, 2007 the Center transmitted by email to HiChina Web Solutions Limited a request for registration verification in connection with the domain name at issue. On March 26, 2007 HiChina Web Solutions Limited replied identifying the registrar of the domain name as Network Solutions, LLC. Accordingly, on March 29, 2007 the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On the same date Network Solutions, LLC 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 30, 2007. The Center verified that the Complaint together with the amendment to 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 April 11, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 1, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 3, 2007.

However, in response to the Center’s Acknowledgment of Receipt of Complaint sent to the Parties on March 26, 2007, the Respondent replied to the Center by email on March 28, 2007. The content of that email is set out in paragraph 5.B below. No further or additional communication from the Respondent has been received by the Center.

The Center appointed David Perkins as the sole panelist in this matter on May 18, 2007. 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

4.A The Complainant

4.A.1 The Complainant’s Business

The Complainant was launched in 1990 as the only twenty four hour television network with programming dedicated to the world of entertainment. The Complaint’s programs are currently available to 89 million cable and satellite subscribers in the United States of America. Those programs can be viewed in more than 120 countries worldwide where they reach approximately 600 million homes. The Complainant has used its E! ENTERTAINMENT name and mark continuously since 1990 and the services provided under that name and mark include not only television broadcasting but also radio broadcasting as well as the provision of streaming video online.

4.A.2 The Complainant’s Domain Names

The Complainant has established a significant on-line presence for its services through the registration and use of domain names incorporating the E! ENTERTAINMENT trademark. These include

Domain Name	Date Created
<eentertainment.com>	May 3, 1996
<eetertainnmenttelevision.com>	July 27, 2001
<eentertainmenttelevision.net>	March 31, 2000

4.A.3 The Complainant’s E! ENTERTAINMENT Trademarks

The Complainant states that it is the proprietor of over 160 service mark registrations worldwide for various forms of its E! ENTERTAINMENT family of marks. These registrations include:

Country	Registration No	Mark	Class(es) of goods / services	Dates of Application and Registration
United States of America	1,645,541	E! ENTERTAINMENT TELEVISION	38 and 41	April 3, 1990 May 21, 1991
United States of America	1,645,543	E! ENTERTAINMENT TELEVISION	38 and 41	April 3, 1990 May 21, 1991
United States of America	1,976,828	E! ENTERTAINMENT TELEVISION	25	July 13, 1995 May 28, 1996
Italy	644,759	E! ENTERTAINMENT TELEVISION		March 2, 1995
European Community Trademark [CTM]	3,235,521	E! ENTERTAINMENT TELEVISION		November 5, 2004
China	2,021,906	E! ENTERTAINMENT TELEVISION		November 28, 2002

4.B The Respondent

4.B.1 In the absence of a Response, save for an email dated March 28, 2007 (which is reproduced in paragraph 5.B below), all that is known of the Respondent is set out in the Complaint and the exhibits to the Complaint.

4.B.2 The domain name in issue <eentertainment.tv> was created on February 27, 2006. That domain name resolves to a website “www.eentertainment.tv” which both (1) provides links to pornographic websites and (2) offers the domain name for sale.

 

5. Parties’ Contentions

5.A Complainant

5.A.1 Save for the gtld suffix “.tv” and omission of the exclamation mark, the domain name is identical to the Complainant’s E! ENTERTAINMENT marks and domain names. As to the gtld suffix, it is accepted case law established by decisions under the Policy that addition of such suffixes is to be ignored for the purpose of assessing identicality. The Complaint cites by way of example, Deutsch Telekom AG .v. Domainsforlife.com, WIPO Case No. D2002-0164.

5.A.2 The domain name in issue is also confusingly similar to the Complainant’s E! ENTERTAINMENT and E! ENTERTAINMENT TELEVISION marks. The “.tv” gtld is used in domain names by other providers of television broadcasting and programming, such as Women’s Entertainment Television who use the domain name <we.tv> and Music Television who use the domain name <mtv.tv>. Accordingly, the Complaint states that use of the <.tv> gtld is commonly used by companies in the media industry and is recognized as such by the public.

5.A.3 As to rights or legitimate interests in the domain name, the Complainant’s case is that the Respondent cannot bring itself within any of the circumstances set out in paragraph 4(c) of the Policy. Use of the domain name to link to pornographic websites and its offer for sale do not, the Complainant says, amount to a bona fide offering of goods or services. Nor, the Complainant says, can such use of the domain name qualify as non-commercial or fair use in the context of paragraph 4(c)(iii) of the Policy.

5.A.4 The Complainant has not licensed or otherwise authorised use of its E! ENTERTAINMENT marks to the Respondent. Given the extremely well-known status of that trademark / service mark the Respondent cannot, the Complainant says, demonstrate rights to or legitimate interest in a domain name which is to all intents and purposes identical to the mark.

5.A.5 With regard to registration of the domain name in bad faith, the Complainant again relies upon the very well-known status of the E! ENTERTAINMENT name and mark worldwide. In addition to such constructive notice, the Complainant put the Respondent on actual notice of its rights by a cease and desist letter sent on February 12, 2007, to which no reply was received. In sum, the Complainant’s case is that it is inconceivable, given the notoriety and worldwide spread of the Complainant’s business under the E! ENTERTAINMENT name and mark, that the Respondent could have registered the domain name in good faith.

5.A.6 As to use in bad faith, the Complainant relies upon paragraphs 4(b)(i), (iii) and iv) of the Policy. As to the former, exhibited to the Complaint is an offer made on February 4, 2007 to purchase the domain name through the “offer for sale” invitation contained on the “www.eentertainment.tv” website for US$250.00 and the Seller’s counteroffer of Euros 8,000.00 [approximately US$10,406.00].

5.A.7 As to the latter, the Complainant relies on the domain name resolving to a website containing links to pornographic websites as clear evidence of use by the Respondent of the domain name to misdirect potential customers looking for the Complainant at E! ENTERTAINMENT and thereby disrupting the Complainant’s business: Policy, paragraph 4(b)(iii). Similarly, such use by the Respondent is clearly intended to attract, for commercial gain, Internet users to that website by creating a likelihood of confusion with the E! ENTERTAINMENT mark: Policy, paragraph 4(b)(iv).

5.B Respondent

As noted in paragraph 3 above, the Respondent sent an email to the Center on March 28, 2007. That email was addressed to the Case Manager and reads:

“hello, [case manager]:

did my claims comments need an doc or email?

The following are my views:

“1 ‘i am the domainname: eentertainment.tv s owner.

2 ‘the domain name: eentertainment.tv, the “E” means Electronic,eentertainment means Electronic entertainment

The eentertainment.tv and the eentertainment.com has not Direct relationship.

3 ‘the sedo.com is a Advertising company,and sale domain name.the online traffic is a Formal business.

4 ‘the domainname:eentertainment.tv parking keywordhas been Changed.No insult to eetertainment.com

5 ‘the domain name “.tv” is not Subordinate to the “.com”

huanhuan_baby@163.com.”

Other than that email, as noted in paragraph 3 above, despite the Respondent being advised of the various procedural steps under the Policy by the Center’s Notification of Complaint and Commencement of Administrative Proceeding dated April 11, 2007, the Respondent apparently chose not to submit a Response to the Complaint.

6. Discussion and Findings

6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:

that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

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

that the domain name has been registered and is being used in bad faith.

6.2 As stated above, the Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent’s rights or legitimate interest in the domain name in issue.

6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.

6.4 Identical or Confusingly Similar

6.4.1 The Complainant has established that it has rights in the E! ENTERTAINMENT and E! ENTERTAINMENT TELEVISION service marks / trademarks.

6.4.2 The Complainant is correct in submitting that addition of the gtld suffix is to be ignored for the purpose of assessing identicality and/or confusing similarity between the domain name in issue and the Complainant’s trademarks. Furthermore, the addition or omission of punctuation marks is, similarly, to be ignored: see, for example. Ahmanson Land Company .v. Vince Curtis, WIPO Case No. D2000-0859. There the domain name was <ahamson-ranch.com> and the Complainant’s trademark was AHAMSON RANCH.

6.4.3 Accordingly, the Panel finds that the domain name in issue is, to all intents and purposes, identical with and is, in any event, confusingly similar to the Complainant’s E! ENTERTAINMENT family of trademarks, including the E! ENTERTAINMENT TELEVISION registrations set out in paragraph 4.A.3 above. The Complaint satisfies the requirements of paragraph 4(a)(i) of the Policy.

6.5 Rights or Legitimate Interests

6.5.1 The Respondent’s email of March 28, 2007 does not establish any of the circumstances set out in paragraph 4(c) of the Policy which, if met, demonstrate rights or legitimate interests in the domain name. Further, the actual use to which the domain name is put – namely, providing a link to pornographic websites – coupled with the very well-known status of the E! ENTERTAINMENT mark and business is inconsistent with either bona fide or fair use by the Respondent.

6.5.2 There is no evidence that the Respondent has become commonly known by the domain name: paragraph 4(c)(ii) of the Policy. The Respondent’s indication that the domain name is parked and not in use confirms this.

6.5.3 In the circumstances, the Complaint satisfies the second requirement of the Policy in paragraph 4(a)(ii).

6.6 Registered and Used in Bad Faith

6.6.1 A finding that the Respondent has no rights or legitimate interests in the domain name is, commonly, indicative of bad faith registration and use. This, in the Panel’s opinion, is just such a case.

6.6.2 As to registration in bad faith, the well-known status of the Complainant’s E! ENTERTAINMENT mark and family of marks is such that – absent compelling evidence to the contrary – it is inconceivable that the Respondent could have registered the domain name in ignorance of the Complainant’s rights in that mark. Indeed, this is not suggested in the Respondent’s March 28, 2007 email.

6.6.3 What the Respondent does say is that “no insult” to the Complainant is intended,. From the statement “… the online traffic is a formal business …” the Panel understands the Respondent to be saying that he is generating pay-per-click revenue trough the website. In terms of use, this – coupled with the print outs from the website exhibited to the Complaint – indicate bad faith within paragraph 4(b)(iv) of the Policy.

6.6.4 Furthermore, in the absence of evidence to the contrary, the offer for sale of the domain name also indicates bad faith use.

6.6.5 Finally, with a trademark as well-known as the Complainant’s E! ENTERTAINMENT / E! ENTERTAINMENT TELEVISION marks, it is difficult to conceive of any plausible, actual or contemplated active use of the domain name in issue by the Respondent that would not be illegitimate.

6.6.6 In all the circumstances, the Panel is satisfied that the Complaint meets the twin 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 domain name, <eentertainment.tv> be transferred to the Complainant.

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David Perkins
Sole Panelist

Dated: June 1, 2007