WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
QVC, Inc. and ER Marks, Inc. v. domains Asia Ventures
Case No. D2003-0523
1. The Parties
The Complainants are QVC, Inc., West Chester, Pennsylvania, United States of America and ER Marks, Inc., Wilmington, Delaware, United States of America; represented by Connolly Bove Lodge & Hutz, LLP, United States of America.
The Respondent is domains Asia Ventures, Fujian, China.
2. The Domain Name and Registrar
The disputed domain name <wwqvc.com> (the "Domain Name") is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 2, 2003. On July 2, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On July 4, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com 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 July 8, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 28, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on July 30, 2003.
The Center appointed Mark Min-Jen Yang as the sole panelist in this matter on August 15, 2003. 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.
The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties (taking note of the Respondentís default in responding to the Complaint).
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondentís response.
4. Factual Background
The Respondent or its predecessor-in-title, registered the Domain Name <wwqvc.com> in 2002.
For convenience of expression, the Complainants are referred to herein in the singular as Complainant. As required or appropriate in context herein, the Complainant refers to QVC, Inc. or ER Marks, Inc. or both.
In the Complaint (paragraphs under Section V, at pages 4-9), and the associated Annexes, the Complainant submitted evidence and contentions of various factual and legal conclusions based on such evidence.
Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. The Panelís position on some contentions is amplified below (in Discussion and Findings).
In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts much (but not necessarily all) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence, as set out in the Complaint. The Panel does accept enough of the Complainantís evidence and contentions, to render its decision below.
For almost two decades, the Complainant has used the "QVC" trademark in connection with its retail services for in-home shopping and its related goods and services (herein, "QVC Services"). The Complainant owns about twenty US trademark registrations or applications for trademarks that include the component "QVC" (listed in the Complaint, pages 5-7, hereinafter "QVC Trademarks"), in association with QVC Services.
5. Partiesí Contentions
The Complainant alleges that the Domain Name, <wwqvc.com>, is identical or confusingly similar to the QVC Trademarks in which the Complainant has rights, that the Respondent has no rights to or legitimate interest in the Domain Name, and that the Domain Name is registered and being used in bad faith by the Respondent. The Complainant requests the transfer to the Complainant QVC, Inc. of the Domain Name.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
One requirement of fundamental due process is that a Respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a response to the Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for the Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).
Where there is default, under Rule 14(a), "the Panel shall proceed to a decision on the complaint", and under the Rule 14(b), "the Panel shall draw such inferences [from the default] as it considers appropriate". Furthermore, Rule 15(a) provides that 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 appropriate". Since the Respondent has not submitted any material and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant.
Paragraph 4(a) of the Policy sets forth three elements to be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. Each of the following three elements must be established by a Complainant:
(a) Respondentís domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(b) Respondent has no rights or legitimate interests in respect of the domain name; and
(c) Respondentís domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Based on the uncontroverted evidence submitted by the Complainant and the facts and conclusions contended for (see Factual Background, above), the Panel finds that:
(a) the Complainant has generated many millions of dollars of revenue for sales of the QVC Services in association with the QVC Trademarks.
(b) the Complainant operates its websites "www.qvc.com" and "www.iqvc.com"; and
(c) the QVC Trademarks, in association with the QVC Services, are the subject of trademark registrations and applications and common law rights in the United States of America.
The Panel finds that the Complainant has significant rights in its QVC Trademarks in the United States of America, in association with the QVC Services.
The Panel finds that the difference between the QVC Trademarks and the Domain Name, is of insufficient legal significance to distinguish the Domain Name from the QVC Trademarks. The mis-typing of "www.qvc.com" (the Complainantís website) as the Domain Name <wwqvc.com>, is a transparent attempt to confuse.
Accordingly, the Panel finds that the Domain Name is confusingly similar to the QVC Trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
Respondent has submitted no evidence, generally, and none under paragraph 4(c) of the Policy in particular, to support a finding of it having any rights or legitimate interests in respect of the Domain Name. This is sufficient for the Panel to accept the Complainantís contention that the Respondent has no rights or legitimate interest.
Furthermore, based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions of factual and legal conclusions set out in the Complaint. In particular, the Panel finds that (a), (b) and (c) under 6.A. above, were likely known by the Respondent when it registered the Domain Name and that makes it very difficult, even if it had submitted evidence, for it to show it had rights or legitimate interests in the Domain Name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
Based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions set out in the Complaint. In particular, the Domain Name was registered in bad faith because it was done with knowledge of the Complainantís trademark registrations and its use of QVC Trademarks in association with its QVC Services. Also in particular, the Domain Name is being used in bad faith because (according to the Complaint) the use is to divert Internet use traffic to its own website in competition with the Complainant and its website.
The Panel finds that the Domain Name has been registered and is being used in bad faith 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 <wwqvc.com> be transferred to the Complainant QVC, Inc.
Date: August 20, 2003