WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
TV4 AB and TV4.COM
Case No. D 2000-0735
1. The Parties
Complainant: TV4 AB
SE 115 79 Stockholm
Dennis Zewillis, Internet Lawyer
Pricommunications PMB # 118
170 9th Ave.
New York, NY 10011
2. The Domain Name and Registrar
Domain Names: TV4.com
Registrar: Network Solutions, Inc
3. Procedural History
In July 5, 2000, the Complainant lodged a complaint with WIPO in respect of the domain name the subject of this complaint, but citing Dennis Zewillis as the respondent to the complaint. Mr. Zewillis objected to his being cited as the respondent on the grounds that the registrant organization is TV4.COM.
The Complainant amended the complaint by citing both TV4.COM and Dennis Zewillis as respondents and lodged the amended version ("the Complaint") with WIPO on August 7, 2000. Exhibited to the Complaint as Annex A is a print up of the Whois ownership record for tv4.com ("the Domain Name") as at June 28, 2000. The ownership record reads as follows:
Dennis Zewillis, Internet Lawyer
Pricommunications PMB # 118
170 9th Ave.
New York, NY 10011
Domain Name: TV4.COM
Administrative Contact, Technical Contact, Zone Contact, Billing Contact:
Zewillis, Dennis Zewillis, Dennis Willardt
170 9th Ave.
New York, NY 10011
WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case .The issue raised by Mr. Zewillis as to the correct identity of the Respondent is discussed below.
The Complaint was properly notified in accordance with the Rules, paragraph 2(a). The Registrar has confirmed that TV4.com ("the Domain Name") was registered through Network Solutions, Inc and that TV4.COM is the current registrant of the Domain Name. The Registrar has further confirmed that the Policy is applicable to the Domain Name.
On August 16, 2000, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its response to the Complainant and to WIPO was September 4, 2000.
On September 1, 2000, Mr. Zewillis sent an email to WIPO objecting to the form of the Complaint on the basis that the registrant organization is TV4.COM alone and that he should not appear as a respondent. He demanded that WIPO require the Complainant to resubmit the Complaint with his name excluded as a respondent. This email sets out Mr. Zewillisís argument clearly. The relevant extract reads as follows:
"Although, the Claimant has amended the complaint, they have successfully kept my name in the organization heading for the complaint.
This is in clear violation with the policy for complaints.
Any complaint can only be filed against the ORGANIZATION NAME (a one line name: TV4.COM) alone as it is listed in the whois information with the registrar.
This is an exact copy of how the domain name is controlled and owned in the whois by the registrant TV4.COM: "Registrant: TV4.COM (TV207-DOM)"
As I have tried to address to you on several occasions, I am listed as the administrative, technical and billing contact for the disputed domain name.
In no way, can the complaint be filed against me. Not even as a part of the ORGANIZATION NAME, as my name is NOT listed as the organization name or any part of it. An organization name only consists of the very first line in the official whois listing. It cannot be changed electronically. Everything else can from day to day. But not the organization name itself. That is the legal owner of the domain name. I can be mentioned as a "care of" or "c/o" recipient. Just like a normal ISP or other caretaker of the domain name. But the complaint must be filed against the ORGANIZATION alone (as listed in the whois) - TV4.COM.
I urge you again to adhere to the very narrow and specific rules governing ICANN/WIPO's policy/rules. Not one single decision listed in your list of decisions run contrary to this principle. Except the complaint against TV4.COM."
On September 4, 2000, WIPO responded to Mr. Zewillis declining to require the Complainant to resubmit the Complaint and pointing out that it was still open to the Panel to decide whether Mr. Zewillis should appear as a respondent to the Complaint.
On September 6, 2000, Mr. Zewillis informed WIPO by email that he disagreed with the deadline of September 4, 2000, set for the Response to the Complaint as he had only received complete notification of the Complaint on August 19, 2000. He said that the deadline ought to be September 8, 2000. WIPO responded the same day extending the deadline to September 8, 2000.
On September 11, 2000, Mr. Zewillis emailed WIPO stating that the hardcopies of the Response had been shipped on September 4, 2000, and ought to be received by WIPO the following week.
On September 21, 2000, WIPO informed Mr. Zewillis that the hard copies of the Response had not been received and that the Response also needed to be submitted electronically. Mr. Zewillis replied the same day saying that he would make sure the Response was emailed to WIPO later in the day. He said that the hard copies had been sent via the US Postal Service. He said that he would not use that service again, but would courier the hardcopies by FedEx that same day.
On September 22, 2000, Mr. Zewillis sent WIPO an email reading as follows:
"Referring to your pleasant email of September 21, 2000, I am pleased to inform you that an additional 4 hardcopies are sent by FedEx to arrive at the WIPO Center Monday afternoon / Tuesday morning.
For the sake of a conclusion to this frivolous complaint, we rest assured that should you not have received our additional hardcopies or the old ones by Tuesday morning, and/or the old ones sent to you some time ago, you will inform the Panel that the Respondent has not responded.
Thank you and I wish you a wonderful day in beautiful Geneva!
Dennis Willardt Zewillis
New York City"
No Response having been received from the Respondent (none of the promised documents whether in hardcopy or electronic form having been received by WIPO), on October 2/3, 2000, WIPO issued to the Respondent a Notification of Respondent Default informing the Respondent of the consequences of default.
The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel as a consequence of which the date scheduled for the issuance of the Panelís Decision is October 27 2000.
4. Factual Background
The Complainant was founded in 1990, and is to day a major TV channel in Sweden. It is the proprietor of the trade mark TV4, which is registered in Sweden under Registration Number 307604 dated January 12 ,1996, for a wide range of media related goods and services.
On November 24, 1998, the Respondent registered the Domain Name.
On June 27, 2000, when the Complainant checked the position, the Domain Name was being advertised for sale on the GreatDomains.com website at an asking price of $15,000.
5. Partiesí Contentions
The Complainant claims that TV4 is its name and trademark. It produces market research evidence to show that its name is one of the best-recognized names in Sweden. It claims that the Domain Name is identical to its name and registered trademark, details of which are given above.
The Complainant claims that the Respondent has no rights or legitimate interests in respect of the name TV4. The Complainant asserts that the Respondent owns no trade mark registrations which are comprised in whole or in part of the mark TV4 and so far as the Complainant is aware, the Respondent does not do business under a name comprised in whole or in part of the mark TV4 and is not known or associated with any name which includes the TV4 name or mark. The Complainant observes that the website at www.tv4.com does not refer to any serious business. It solely refers to an offer to buy (sic) the Domain Name.
The Complainant asserts that the Respondent registered the Domain Name in bad faith and is using it in bad faith. The Complainant states that various articles in Scandinavian (mainly Danish and Norwegian) newspapers describe Mr. Zewillis "as a well-known notorious cybersquatter registering famous trade marks solely in order to sell them back to their owners and make a financial profit". The Complainant exhibits reports of a Danish case between Beologic A/S and Mr. Zewillis in which both the court of first instance and the appellate court are reported to have held that Mr. Zewillis and/or the companies under his control had registered over 200 domain names "principally focussed on well-known Danish trade marks".
The Complainant asserts that the circumstances of this case, namely, first, Mr. Zewillisí apparent predilection for registering through companies with which he is associated the famous trade marks of others, secondly, the absence of any bona fide business of the Respondent under the Domain Name and, thirdly, the offer for sale of the Domain Name at an asking price of $15,000 constitute clear evidence of registration in bad faith and use in bad faith.
The Respondent has not filed a Response with WIPO either in hard copy or electronically, despite claims made by Mr. Zewillis that he has done so.
The contentions of Mr Zewillis with regard to his inclusion in the Complaint as a respondent are set out in paragraph 3 above.
6. Discussion and Findings
Dennis Zewillis, who identifies himself in the correspondence as being the administrator of the Domain Name, has complained that the Complaint is defective in that he is identified as a respondent. Those representing the Complainant have explained why Mr. Zewillis was named as a respondent, namely because, despite having made investigations, they could not trace TV.COM as a legal entity. They assumed the name appeared in the Whois ownership record simply as a reference to the Domain Name and that Dennis Zewillis, whose name appears in the Whois ownership record below TV.COM and above or as part of the address, is the true owner and the correct addressee of the Complaint. The Panel observes that the Complainant has produced ample evidence to show why Dennis Zewillis might reasonably be regarded as the true owner of the Domain Name.
Neither Mr. Zewillis nor the Respondent has made any effort to identify what (if anything) TV.COM is, other than a name. Moreover Mr. Zewillis not only appears as part of the address of the owner of the Domain Name, he also features as the administrative, technical, zone and billing contacts for the Domain Name. If not the owner, he is and has at all material times been very closely associated with the Domain Name.
However, the important thing is that for the purposes of the Complaint the Registrar recognizes TV4.COM as being the Respondent and that the Respondent (whether in reality it ought to be TV.COM, Dennis Zewillis or both of them jointly) has received the Complaint and has had an opportunity of responding to it. The Panel finds that if and to the extent that the Complaint is defective, it is a defect of form and not of substance and can be corrected by the Panel treating TV.COM as the sole respondent. That is what the Panel proposes to do and the title of the proceeding has been amended accordingly.
The Panel should make it clear that while it is prepared to accept for the purposes of this complaint that the Respondent is TV4.COM and not Mr. Zewillis, the fact is that Mr. Zewillisís name is part of the ownership record for the Domain Name. He is more than simply the administrative contact for the Domain Name. The Panel notes the Danish Trade Mark Decisions report (Annex G to the Complaint) and the passage reading "Defendant Dennis Zewillis, or his arguably controlled companies, had registered over 200 domains, principally focussed on well-known Danish trade marks" The Panel takes the view that his recorded behavior in relation to other domain names can reasonably be taken into account when assessing the Respondentís position in relation to the Domain Name. It would be absurd not to do so.
According to paragraph 4a of the Uniform Dispute Resolution Procedure Policy, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
Identical or confusing similarity
The Complainant has produced evidence to show that TV4 AB is its name and that it is the proprietor of the Swedish registered trademark TV4 for a wide variety of media related goods and services. Accordingly, the Panel finds that the Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights.
Rights and legitimate interests of the Respondent
Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name involves proving a negative. Proving a negative is notoriously difficult and it is no doubt for this reason (at any rate in part) that by virtue of paragraph 4(c) of the Policy the burden of proof is to a certain extent shifted onto the shoulders of the Respondent. That sub paragraph sets out certain circumstances which, if found by the Panel to be proved, will demonstrate the Respondentís rights or legitimate interests to the Domain Name for the purposes of paragraph 4(a)(ii) of the Policy.
The circumstances set out in that sub paragraph are:
h Before any notice to the Respondent of the dispute, the Respondentís use, 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
h The Respondent, (as an individual, business or other organization) has been commonly known by the Domain Name, even if the Respondent has acquired no trade mark or service mark rights; or
h The Respondent is making a legitimate non commercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The obligation on the Complainant is to make out a prima facie case and it has done so. The Domain Name appears to be directed to the Complainantís business. There is no evidence before the Panel to show that the Respondent has any interest in the world of television. The Respondent has produced no material to demonstrate any of the circumstances set out in paragraph 4(c) of the Policy. The Complainant, on the other hand, has produced substantial evidence tending to show that Mr. Zewillis or another company with which he is closely associated is a serial cybersquatter.
The Respondent has made no effort of any kind to discharge the burden upon him under this paragraph of the Policy. On the contrary, the Respondent, through Mr. Zewillis has failed to deliver what the Respondent has promised to deliver. Even if one is to assume that both sets of hard copies of the Response have gone astray in the hands of the US Postal Service on the first occasion and FedEx on the second occasion, why was the Response not electronically transmitted, when Mr. Zewillis said he would ensure that it would be so transmitted? Why has the Respondent not produced confirmation from the US Postal Service and/or FedEx that the packages have gone astray?
The Panel concludes that the packages never left and that the Respondent never had any intention of responding. The Panel concludes that the Respondent knows very well that it has no answer to the Complaint. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
Paragraph 4(b) of the Rules sets out four non-exclusive criteria, which shall be evidence of the registration and use of a domain name in bad faith. The burden of proof here is clearly on the Complainant. One of the criteria set out in paragraph 4(b) is that set out in subparagraph (i), namely:
"Circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant or to a competitor of that Complainant, for valuable consideration in excess of the Respondentís documented out of pocket costs directly related to the Domain Name;"
The Domain Name is not a name in respect of which the Respondent has rights. Why did the Respondent register it? There is no direct evidence as to the Respondentís primary motive. The Respondent is clearly ready to sell the Domain Name and hopes to sell it for a sum well in excess of its out-of pocket expenses relating to the Domain Name, but there is nothing wrong with that so long as the registration was made in good faith.
Was the Respondent aware of the Complainantís rights in respect of the name TV4? The Panel concludes that it was. The Panel refers to Mr. Zewillisís track record, from which the Respondent cannot sensibly be divorced. The name is not a common generic name and the price the Respondent was seeking for the name was high for a name with no obvious intrinsic value. The Panel concludes that Mr Zewillis registered the Domain Name on behalf of the Respondent, knowing of the existence of the Complainant and its well-known television channel. The Respondent hoped and anticipated that the Complainant would make an offer for the Domain Name at a price which far exceeded its out-of-pocket expenses; hence, the asking price on the GreatDomains.com website.
The Respondent has had ample opportunity to respond fully to the Complaint, but has chosen not to do so. While the Respondent is under no obligation to respond, the fact is that Mr. Zewillis told WIPO that it had responded and WIPO waited for some considerable time for the hard copies of the Response to arrive. They never arrived. The promised electronic version never arrived. No attempt was made to explain the non-arrival of the promised Response. This was not the behavior of a Respondent acting in good faith.
The Panel finds that the Respondent registered the Domain Name in bad faith and is using it in bad faith on the basis of the circumstances set out in paragraph 4(b)(i) of the Policy.
In light of the above findings, namely that the Domain Name is identical or confusingly similar to a trade mark to 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, the Panel directs that the Domain Name, TV4.com, be transferred to the Complainant.
Dated: October 30, 2000