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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

CBS Broadcasting Inc. v. James McKee a/k/a World in Motion a/k/a Colorado Broadcasting Services

Case No. D2008-1562

1. The Parties

The Complainant is CBS Broadcasting Inc. of New York, United States of America, represented internally.

The Respondent is James McKee of Boulder, Colorado, United States of America.

2. The Domain Names and Registrar

The disputed Domain Name <cbstelevision.com> is registered with Network Solutions, LLC.

The disputed Domain Name <cbstelevision.net> is registered with GoDaddy, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 14, 2008. On October 15, 2008, the Center transmitted by email to the respective registrars a request for registrar verification in connection with the Domain Names.

On October 15, 2008, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent World in Motion is listed as the registrant of the Domain Name <cbstelevision.com> and providing the contact details for the Respondent James McKee as the administrative and technical contact.

On October 16, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent Colorado Broadcasting Services is listed as the registrant of the Domain Name <cbstelevision.net> and providing the contact details for the Respondent James McKee as the administrative and technical contact.

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 21, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 10, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 11, 2008.

The Center appointed W. Scott Blackmer as the sole panelist in this matter on November 17, 2008. 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 New York corporation headquartered in New York City. It is one of the leading television and radio broadcasting companies in the United States of America and provides entertainment, news, and sports programming globally. The Complainant operates websites at “www.cbs.com” and “www.cbsnews.com”.

Since 1933, the Complainant has used the CBS mark to identify its services. The Complainant holds several trademark registrations for CBS as a standard-character mark, including United States Registration Number 777570 (September 22, 1964; design mark incorporating the letters CBS), Number 852481 (July 9, 1968; standard-character mark), and Number 2758242 (September 2, 2003; standard-character mark).

This Panel concludes, as have earlier UDRP panels, that the Complainant’s CBS mark is long established and well known in the United States of America and worldwide. See CBS Broadcasting Inc. v. Edwards Enterprises, WIPO Case No. D2000-0242; CBS Broadcasting Inc. v. Rossi Hassad, WIPO Case No. D2000-1064; CBS Broadcasting Inc. f/k/a CBS Inc. v. Naivi Rodriguez a/k/a Naivi R, WIPO Case No. D2005-0005.

The Domain Name <cbstelevision.net> was registered in the name of Colorado Broadcasting Services on February 10, 2000, listing as its address a post office box in Boulder, Colorado, United States of America. The Respondent James McKee is shown as the administrative and technical contact, at the same address. Mr. McKee is also listed as the administrative and technical contact for the Domain Name <cbstelevision.com>, which was registered on November 7, 2003 in the name of the Respondent World in Motion, showing the same postal address in Boulder, Colorado, United States of America.

In an email to the Center dated October 20, 2008, Mr. McKee identified himself as “the defendant or owner of the two domain names”. The Complainant furnished copies of public records indicating that World in Motion is a fictitious business name registered in Colorado by the Respondent Mr. McKee. Colorado Broadcasting Services is not registered as a legal entity or fictitious business name in Colorado. Based on the available record, the Panel concludes that both World in Motion and Colorado Broadcasting Services are alter egos for Mr. McKee, who by his own admission is the owner of both Domain Names. This Decision will henceforth refer to Mr. McKee as “the Respondent”.

The Complainant furnished printouts of archived website pages associated with the Domain Names from December 2003 through late 2004 from the Internet Archive Wayback Machine at “www.archive.org”. These show that the Domain Names redirected Internet users at that time to the Complainant’s website at “www.cbsnews.com”.

By May 2006, the Domain Name <cbstelevision.com> resolved to a page with the message, “The domain CBSTELEVISION.COM is for sale”. By November 2007, both Domain Names resolved to a similar website with the following text:

“We are selling this domain. Price has been reduced to $8,400 for this week only. . . . After November 5, domain will go on auction for min. bid starting at $10,900.”

On November 2, 2007, Mr. Kyle Brewster, introducing himself as the domain administrator of the Domain Names, emailed an employee of the Complainant, offering to sell both Domain Names to the Complainant for USD8400 and stating that “a competitive cable network” was interested in both Domain Names. The Complainant’s employee countered with a demand for the transfer of the Domain Names.

The content of the website associated with the Domain Name <cbstelevision.com> changed in 2007. No longer simply offering to sell the Domain Name, the website displayed the heading “Colorado Broadcasting Services and Television”. A page labeled “Our Mission” stated that Colorado Broadcasting Services and Television was a Colorado nonprofit organization established “to help bring movie and television production into the Rocky Mountain Region”. However, the URL address of that page, “www.cbstelevision.com/2007/07/01/yep-its-for-sale”, suggests that the Respondent was still trying to sell the Domain Names. The Complainant furnished a printout showing that on November 6, 2007, the Domain Name <cbstelevision.com> was also listed for sale at Sedo.com for USD4700.

Printouts furnished by the Complainant indicate that, beginning in January 2008, the Domain Names resolved to a website advertising the availability of television production crew and equipment, with a contact form referring to a “climb” that is not further identified. The website did not offer further details about goods or services offered by the Respondent.

The Domain Names do not currently resolve to a website. Both Domain Names continue to be listed for sale at Sedo.com, for an “expected” price of USD2500 each.

Although the Respondent James McKee corresponded by email with the Center concerning this proceeding, no Response was submitted.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Names are confusingly similar to its registered CBS mark, and that the Respondent has no rights or legitimate interests in the Domain Names. The Complainant infers that the Domain Names were registered and used in bad faith, since the CBS mark is well known and the Respondent has repeatedly attempted to sell the Domain Names to the Complainant or others for an amount considerably in excess of its likely out-of-pocket expenses.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to divest the Respondent of a disputed domain name, the Complainant must demonstrate each of the following:

(i) the 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 Domain Name; and

(iii) the Domain Name has been registered and is being used in bad faith.

Under paragraph 15(a) of the Rules,

“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

A. Identical or Confusingly Similar

The Complainant has demonstrated rights in the registered CBS mark. The Domain Names incorporate the mark in its entirety and add a generic English word, “television”. This addition does not reduce the likelihood of confusion with the mark. To the contrary, the likelihood of confusion is heightened, because the mark is strongly associated with the Complainant’s television broadcasting services.

The Panel concludes that the Domain Names are confusingly similar to the Complainant’s CBS mark, satisfying the first element of the Policy.

B. Rights or Legitimate Interests

The Respondent does not claim a relationship with the Complainant or dispute the Complainant’s assertion that it has not authorized the Respondent to use its CBS mark. This establishes the Complainant’s prima facie case on the second element of the Complaint, and the burden shifts to the Respondent to produce evidence of its rights or legitimate interests under paragraph 4(c) of the Policy. See Admiral Insurance Services Limited v. Mr. Adam Dicker, WIPO Case No. D2005-0241; Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. The Respondent has not done so.

The Policy, paragraph 4(c), provides a non-exhaustive list of circumstances in which the Respondent could demonstrate rights or legitimate interests in the Domain Names:

“(i) before any notice to you 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 (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 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.”

The record indicates that the Respondent initially used the Domain Names to redirect Internet users to one of the Complainant’s websites (possibly to establish the value of the Domain Names in attracting visitors). The Respondent has offered the two Domain Names for sale since 2006 and 2007, respectively, and continues to do so.

The website associated with the Domain Names in November 2007 and most of 2008 only vaguely describes, first, a nonprofit organization with the initials CBS and then a television production service, both ostensibly located in Colorado. The State of Colorado does not appear to have any record of such a nonprofit or commercial entity, and the website suspiciously lacks details concerning the activities of the purported nonprofit organization or the offerings of the purported television production service.

There is not sufficient evidence in the record to conclude that the Respondent has ever been known by the name “CBS Television” or has used that name (or planned to use that name) in connection with a bona fide offering of goods or services. Accordingly, the Panel finds that the Complainant has established the second element of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that indicate bad faith, including the following:

“(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;

“(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 Domain Names are confusingly similar to a mark that was long established and well known by the time the Respondent registered the Domain Names. The record shows that the Respondent has tried to sell the Domain Names over a period of years, without himself making any substantial use of the Domain Names apart from redirecting traffic to one of the Complainant’s websites and then, for several months after this dispute arose, vaguely advertising a supposed organization with the initials found in the Domain Names. An apparent representative of the Respondent contacted the Complainant in 2007 and attempted to sell the Domain Names to the Complainant for an amount that is clearly in excess of the Respondent’s out-of-pocket costs, expressly threatening to sell the Domain Names to an unnamed competitor if the Complainant did not purchase them.

Taken together, these facts indicate the likelihood that the Respondent acquired the Domain Names precisely because of their confusing similarity to a well-known mark, for the purpose of selling them to the Complainant or a competitor on the strength of their likely association with the Complainant. This amounts to bad faith registration and use for purposes 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 names <cbstelevision.com> and <cbstelevision.net> be transferred to the Complainant.


W. Scott Blackmer
Sole Panelist

Dated: December 1, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1562.html

 

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