Complainant is ITV Consumer Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Olswang LLP, United Kingdom of Great Britain and Northern Ireland.
Respondent is Ho Nim of Shanghai, Pudong, the People's Republic of China.
The disputed domain name <wwwitvplayer.com> (“Disputed Domain Name”) is registered with Above.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2010. On March 26, 2010, the Center transmitted by email to Above.com, Inc. a request for registrar verification in connection with the Disputed Domain Name. On March 29, 2010, Above.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on March 31, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 21, 2010.
The Center appointed William L. LaFuze as the sole panelist in this matter on April 28, 2010. 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.
Complainant alleges facts which are not rebutted by Respondent and, for the reasons set forth in paragraph 6.B. below, are therefore assumed to be correct.
Complainant is the operator of one of the largest commercial television networks in the United Kingdom. Complainant and its subsidiaries provide a variety of services related to television programming, including the commissioning, scheduling and marketing of network programs. In addition, through its subsidiaries, ITV Studios and ITV Global Entertainment, Complainant produces and distributes programs globally. Complainant also delivers its On-Demand Programming to personal computer and television sets via its ITV Player.
Complainant owns a number of trademark registrations, consisting of or including the words “itv” and “player”. These trademark registrations include United Kingdom Registration No. 2500190 for the mark ITV PLAYER which was filed on October 15, 2008 and United Kingdom Registration No. 2500188 for the mark ITV NET PLAYER which was filed on October 15, 2008 as well. In addition, Complainant owns many other ITV related trademarks and domain names which were registered well-before Respondent registered the Dispute Domain Name. Specifically, Respondent registered the Dispute Domain Name on November 13, 2009.
Complainant has used the marks ITV, ITV PLAYER and/or ITV PLAY (or other similar marks) in relation to the goods and services covered by the trademark registrations in the United Kingdom and other territories. Complainant's use and registration of the ITV-related marks preceded Respondent's registration of the Disputed Domain Name. Respondent has no relationship with or permission from Complainant for the use of its names or marks. Respondent's use of the Disputed Domain Name infringes upon the names and trademarks of Complainant and clearly establishes a likelihood of confusion.
Respondent has not used the Dispute Domain Name in connection with an offering of goods and services. Rather, the Disputed Domain Name has been deliberately registered and used for an illegitimate purpose, namely seeking to create confusion on the part of the public between Respondent and Complainant for commercial gain. Respondent is not legitimately known by the Disputed Domain Name. In addition, Respondent has not acquired any trademark rights in the Disputed Domain Name.
Respondent's bad faith is evidenced by the fact that it maintains a website associated with the Disputed Domain Name that is essentially identical to Complainant's registered trademark. Such website contains links to Complainant's competitors such that Respondent profits from compensation received from the owners of such linked websites based on the number of hits received. Respondent has also advertised that the Disputed Domain Name is available for purchase.
Respondent did not reply to Complainant's contentions.
Under paragraph 15(a) of the Rules, the Panel must decide this 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. To qualify for cancellation or transfer, a complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights;
(ii) respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a domain name dispute proceeding. But, if it fails to do so, asserted facts that are not unreasonable are taken as true and the respondent is subject to the inferences that flow naturally from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441. See also Hewlett-Packard Company v. Full System S.a.S., NAF Claim No. 94637; David G. Cook v. This Domain is For Sale, NAF Claim No. 94957 and Gorstew, Jamaica, and Unique Vacations, Inc. v. Travel Concierge, NAF Claim No. 94925. Accordingly, all asserted facts in the Complaint that are not unreasonable are taken as true.
Complainant's asserted prior common law use, ownership, and registration of the marks ITV, ITV PLAY and ITV PLAYER is uncontested and is taken as true.
Respondent's domain name, <wwwitvplayer.com>, is substantially identical to, and confusingly similar to, Complainant's ITV PLAYER trademark. The use of “.com” and the addition of the letters “www” by Respondent to the Disputed Domain Name are not material and of no legal consequence in making this determination.
Complainant has established this element.
Respondent is not commonly known by the Disputed Domain Name and has not acquired trademark or service mark rights in the Disputed Domain Name. Respondent has not requested or been given permission by Complainant to use the Disputed Domain Name. There is no evidence proffered by Respondent to show that it has any rights or legitimate interest in the Disputed Domain Name.
Accordingly, Complainant has established this element.
It is reasonable to presume that Respondent intended to profit from the registration of <wwwitvplayer.com> given that its website offers links to providers of goods and services that are identical or similar to those offered by Complainant. It is also reasonable to assume that the Disputed Domain Name was registered with the intent to sell it to Complainant or a competitor for a profit. Finally, the use of the phrase “www” prior to Complainant's trademark in the Disputed Domain Name is a tactic commonly used to divert Internet traffic of those who mistakenly omit the “.” between “www” and the desired domain name. Such intentions and actions are evidence of bad faith.
Respondent has made no effort to respond or justify the reasons underlying its registration of the Disputed Domain Name.
Accordingly, Complainant has established this element.
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 <wwwitvplayer.com> be transferred to Complainant.
William L. LaFuze
Dated: May 12, 2010