Demand Media, Inc. v. Omar Ben Ibrahim
Claim Number: FA1305001502724
Complainant is Demand Media, Inc. (“Complainant”), represented by Gary Hammock, Sr. of Demand Media, Inc., Washington, United States. Respondent is Omar Ben Ibrahim (“Respondent”), Saudi Arabia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ehow.ws>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 31, 2013; the National Arbitration Forum received payment on May 31, 2013.
On May 31, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <ehow.ws> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 4, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 24, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@ehow.ws. Also on June 4, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 7, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant bases its Amended Complaint upon its EHOW® trademark which has been in use in connection with providing an online community dedicated to providing visitors the ability to research, share, and discuss instructional solutions that help complete day-to-day tasks and projects, since at least as early as October, 1999. Specifically, Complainant is the owner of the following United States Trademark registration, international trademark registrations and pending international trademark applications inclusive of the mark EHOW:
1) U.S. Trademark Registration No. 3,828,621 for the mark EHOW, which covers Printed reference material, relating to advice, instruction and other tips and helpful information provided to assist individuals in accomplishing a variety of practical tasks, namely, books; printed reference material, namely, books, all providing practical information on a wide variety of subjects; printed reference, instructional and information material in printed form, namely, books featuring practical information on a wide variety of subjects, in International Class 016; Providing information regarding the goods and services of others by means of a global computer network; providing on-line advertising services of goods and services of others, namely, providing advertising space on a global computer network for manufacturers, vendors and retailers, in International Class 035; Providing interactive on-line forums for information sources, authors, consumers and end-users to engage in communications regarding practical information on a wide variety of subjects, in International Class 038; Providing on-line publications in the nature of e-articles featuring instruction on arts and entertainment, business, careers and work, cars, computers, culture and society, education, electronics, fashion, style, personal care, food and drink, health, hobbies, games, toys, holidays and celebrations, home and garden, internet, legal, parenting, parties and entertaining, personal finance, pets, relationships and family, sports and fitness, travel, and weddings; entertainment services, namely, providing a web site featuring user-generated videos on a wide variety of topics and subjects, in International Class 041; and Providing a web site that gives computer users the ability to upload and share user-generated videos, essays and articles on a wide variety of topics and subjects; computer services, namely, providing search engines for obtaining data on a global computer network, in International Class 042.
2) Argentina Trademark Application Nos. 3108775 and 3166285
3) Australia Trademark Registration No. 1189986
4) Benelux Trademark Registration No. 672009
5) Brazil Trademark Application No.831194731
6) Canada Trademark Registration No. TMA775,407
7) Chile Trademark Application No. 967531
8) Chinese Trademark Registration Nos. 6284298, 6284299, 6284300, 6284301, 6284302
9) Colombia Trademark Registration No. 440283
10) Denmark Trademark Registration No. 20002852VR
11) European Community Trademark Registration No. 8527764
12) Finland Trademark Registration No. 220408
13) France Trademark Registration No. 99812781
14) UK Trademark Registration No. 2208947
15) India Trademark Registration No. 1021377 and Application Nos. 1859640, 1859641, 1859642, 1859643, 1859644
16) Japan Trademark Registration Nos. 4415583 and 5436396
17) Mexico Trademark Registration No. 1260993
18) Norway Trademark Registration No. 204387
Complainant acquired eHow, Inc. in 2008. The EHOW mark has been continuously used in interstate commerce in the United States and worldwide as a designation of origin at least as early as October, 1999 in connection with selling, advertising, and promoting its goods and services, to distinguish its goods and services in the marketplace, and to identify and distinguish Complainant amongst others in the trade.
JURISDICTIONAL BASIS FOR THE ADMINISTRATIVE PROCEEDING
This dispute is properly within the scope of the Policy, and the Administrative Panel has jurisdiction to decide this dispute. Pursuant to the GoDaddy.com Registration Agreement under which the Domain Name was registered, Respondent has expressly agreed that its registration of the Domain Name is bound by the terms and conditions of the Uniform Dispute Resolution Policy.
In accordance with Section 4 of the Policy, Respondent is required to submit to a mandatory administrative proceeding because 1) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; 2) The Respondent has no rights or legitimate interests in respect to the Domain Name; and 3) the Domain Name was registered and is being used in bad faith.
FACTUAL AND LEGAL GROUNDS
This Amended Complaint is based on the following factual and legal grounds:
A. Introduction
1. Respondent is infringing upon Complainant’s EHOW® mark through its unauthorized registration and bad faith misuse of the domain name <ehow.ws>.
2. Complainant has continuously and exclusively used the EHOW® mark (beginning at least as early as October, 1999 in connection with the Class 41 services in the United States and internationally and has continued to expand its services offerings since then, all well before Respondent registered the disputed Domain Name.
3. As a result of Complainant’s extensive use and active promotion, the EHOW® mark is famous and distinctive of the services both in the United States and internationally.
4. Complainant is the leader in distributed social media, powering 3 billion conversations every month. Through the use of its EHOW® trademark and the eHow.com website, Complainant operates an online community dedicated to providing visitors the ability to research, share, and discuss instructional solutions that help complete day-to-day tasks and projects. Complainant is on the forefront of the online social media revolution and is easily identifiable as the leader in the social media field.
5. Complainant is the owner of various eHow intellectual property, including the exclusive rights to the EHOW® trademark for online media goods and services, including instructional “how-to” articles and videos. Complainant’s US trademark application, and international trademark applications and registrations for “eHow” shall adequately confer Complainant’s rights in the trademark under the Policy ¶4(a)(i). See Metro. Life. Ins. Co. v. Robert Bonds, FA873143 (NAF February 16, 2007); see also Expedia, Inc v. Blake Emmerson, FA873346 (NAF February 9, 2007). Complainant and its predecessor in interest has used the EHOW® trademark continuously in interstate commerce since at least as early as October 1999 as a source designation for its social media goods and services. Complainant has invested hundreds of thousands of dollars a year in advertising its EHOW® goods and services. A search using the Google search engine for the term “ehow” returns over 26,000,000 search results, the top 50 search results which all pertain to Complainant and Complainant’s goods and services. The EHOW® trademark has thus developed substantial goodwill and is an extremely valuable asset to Complainant.
6. Respondent is making unauthorized use of Complainant’s EHOW® mark in a manner that is likely to confuse, and likely has confused, consumers into falsely believing that Respondent is affiliated with, connected to, or sponsored by Complainant. Respondent’s activities create the erroneous impression that Respondent’s <ehow.ws> domain name is operated by or otherwise associated with or sponsored by Complainant, causing irreparable damage to Complainant.
B. Respondent’s Domain Name is Confusingly Similar To Complainant’s Mark
7. Respondent is the registrant of the disputed Domain Name <ehow.ws>, as evidenced by the WhoIs report. The disputed Domain Name is confusingly similar to Complainant’s registered trademark for EHOW® as well as Complainant’s numerous domain names, including but not limited to, <ehow.com>, <ehow.co.uk>, <ehow.de>, <ehowenespanol.com> and <ehow.com.br>, all of which Complainant uses in connection with the legitimate promotion of social media goods and services offered under Complainant’s mark. The Domain Name incorporates Complainant’s trademark in its entirety, is spelled in exactly the same manner and is phonetically equivalent with Complainant’s mark, incorporates Complainant’s trademark in its entirety, and merely substitutes the generic top-level domain (“gTLD”) “.COM” with the country code top-level domain (“ccTLD”) “.WS”. This substitution of the ccTLD “.WS” in place of the gTLD “.COM” does not create a meaningful distinction between the disputed domain name and the Complainant’s mark. See Citigroup Inc. v. CAAB, FA1231645 (NAF December 8, 2008) (“The <citibank.ws> domain name incorporates Complainant’s CITIBANK mark it its entirety and adds the country-code top-level domain (ccTLD) “.ws,” which is the country-code for Western Samoa. The use of a ccTLD is without significance to this analysis. The Panel finds that the <citibank.ws> domain name is identical to Complainant’s CITIBANK mark pursuant to Policy ¶4(a)(i). See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”); see also Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark).”).
8. The addition of the ccTLD “.WS” also fails to distinguish the disputed Domain Name from Complainant’s EHOW® mark. It is well-settled that a top-level domain name does not factor into any analysis under Policy ¶4(a)(i). See Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that “the addition of the generic top-level domain (gTLD) name ‘.com’ is … without legal significance since use of a gTLD is required of domain name registrants”); Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of a domain name such as “.info” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (NAF Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy).
9. When an internet user seeks information about EHOW®, it is clear that the user seeks information about Complainant and Complainant’s goods and services offered under its EHOW® trademark, as evidenced by the fact that the top 50 search results in Google all pertain to Complainant, Complainant’s goods and services, and news and information about Complainant’s eHow property.
10. In light of the foregoing, Complainant asserts that Respondent’s Domain Name is similar in sight, sound and meaning to Complainant’s distinctive EHOW® mark for media goods and services and is confusingly similar to Complainant’s distinctive EHOW® trademark. Complainant respectfully submits that it has satisfied Policy ¶4(a)(i).
C. Respondent Has No Rights Or Legitimate Interest In The Domain Name
11. The mere registration of a domain name does not establish rights or a legitimate interest in that name. See Polaroid Corp. v. Jay Strommen, D2005-1005 (WIPO Nov. 22, 2005). Under the Policy, Respondent bears the burden of proving that it has rights or a legitimate interest in the domain name. See G.D. Searle v. Martin Mktg., FA 118277 (NAF Oct. 1, 2002); Dr. Ing h.c. F. Porsche v. Simon Postles, Case No. D2001-1360 (WIPO Mar. 21, 2002) (holding, once Complainant makes a showing that a respondent lacks rights or legitimate interest in a domain name in dispute, "the onus shifts to the Respondent"); C.R. Bard Inc. v. Belize Domain WHOIS Service, FA979990 (NAF June 18, 2007) (finding that once the complainant makes an initial showing of the exclusive right to use a mark, the burden shifts to the respondent to show that it has rights and legitimate interests in the domain name). Respondent cannot overcome this burden for at least two reasons: (1) Respondent has no rights in the EHOW® mark, and (2) Respondent is not making a legitimate non-commercial or fair use of the Domain Name <ehow.ws>.
i. Respondent Has No Rights in the EHOW® Mark
12. There is no relationship between Complainant and Respondent which would entitle the Respondent to use the Complainant’s trademark. Complainant has not granted Respondent a license or any other authorization to use or register the EHOW® mark as part of a domain name or otherwise. See K12 Inc. v. Rahul Rahul, FA1259769 (NAF June 16, 2009) (holding that Respondent had no rights or legitimate interest in Complainant’s mark when there was no evidence that Respondent was commonly known by the disputed domain name, and no evidence of an affiliation, license, or permission between the parties was put forth); see also Certified Fin. Planner Bd. of Standards v. Tuner Events, FA990677 (NAF June 22, 2007) (finding no rights or legitimate interests where Respondent was not authorized to use Complainant's mark and was not commonly known by the mark). Instead, Respondent clearly registered the Domain Name to trade off of the goodwill and recognition of Complainant’s website and to divert Internet traffic to Respondent’s site which has no relation to Complainant’s site. Any internet user that seeks information regarding EHOW® is clearly directed to Complainant’s website or information about Complainant’s goods and services as designated by the EHOW® trademark.
ii. Respondent Is Not Making a Legitimate or Fair Use of the Domain Name
13. Respondent’s use of the disputed Domain Name is not legitimate. Instead of choosing an available domain that would not impinge on Complainant’s trademark, Respondent deliberately chose a domain that plays off of the notoriety and substantial goodwill of Complainant’s mark and Complainant’s websites at <ehow.com>, <ehow.co.uk>, <ehow.de>, <ehowenespanol.com> and <ehow.com.br>. Respondent clearly registered the disputed Domain Name to divert internet traffic from Complainant’s site by creating initial consumer confusion. Any internet user searching for Complainant’s goods and services would have the likely expectation that the Domain Name would revert to Complainant. However, by creating this confusion, Respondent diverts Internet users from Complainant’s site to Respondent’s site, which hosts links to material from Complainant’s website at <ehow.com> that is protected by copyright and does so without license or authorization, which creates further consumer confusion. Numerous examples are attached hereto as Exhibit J. Such use of the Domain Name to redirect Internet users away from Complainant’s website and to Respondent’s website displaying Complainant’s copyrighted material “is not a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).” See Tercent Inc. v. Lee Yi, FA139720 (NAF February 10, 2003); see also Mayo v. Crowder, FA114592 (NAF July 29, 2002).
14. Respondent’s registration of the disputed Domain Name is not for legitimate, non-commercial fair use, but is for no other reason than for commercial gain, playing off the good will and designation of Complainant’s mark. Respondent cannot establish, under ¶4(c)(iii) of the Policy that Respondent has any legitimate interests or rights in the disputed Domain Name; therefore, Complainant respectfully submits that it has satisfied Policy ¶4(a)(ii).
D. Respondent Registered And Is Using The Domain Name In Bad Faith
15. The Domain Name was registered by Respondent in bad faith. Respondent has registered the Domain Name and populated it with content taken without license or authorization directly from Complainant’s website at <ehow.com>. Such use of the Domain Name demonstrates an attempt on the part of the Respondent to capture Complainant’s consumers, and that Respondent registered the Domain Name with full knowledge of Complainant’s rights in the EHOW® trademark and its rights associated with its copyright-protected content on <ehow.com>, and is thus clear evidence of bad faith registration and use of the Domain Name. See Deltathree Inc. v. Bashir, FA124510 (NAF November 9, 2002); Digi Int’l v. DDI Sys., FA124506 (NAF October 24, 2002); and Simple Truths, LLC v. VivaWorld c/o Web Manager, FA956505 (NAF May 29, 2007).
16. The Domain Name was not created until December 6, 2011, well after Complainant began using its EHOW® trademark in commerce and on the world wide web. Respondent uses the disputed Domain Name to promote Complainant’s goods and services without Complainant’s permission, and clearly registered it with the knowledge of Complainant’s trademark for EHOW®.
17. In light of the foregoing, Respondent registered the Domain Name to intentionally attract internet users to Respondent’s website, by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement of the website which is sufficient to establish bad faith. See Sony Ericsson Mobile Communications International AB, Telefonakitiebolaget LM Ericsson, Sony Corporation v. Party Night, Inc., D2002-1128 (WIPO January 27, 2003); see also Adobe Systems Inc., v. Domain Oz, D2000-0057 (WIPO March 24, 2000). The Domain Name incorporates Complainant’s mark in its entirety. Respondent’s website consists almost entirely of links to “how-to” articles on Complainant’s website at <ehow.com> without permission from Complainant. Based on the above, Complainant respectfully submits that it has satisfied Policy ¶4(a)(iii)
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims it owns various trademark registrations for the EHOW mark. Specifically, Complainant has provided evidence it owns registrations of the EHOW mark with the following trademark offices:
It is sufficient for a complainant to own a trademark registration to prove its rights to a mark under Policy ¶4(b)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004). While some would require a Complainant to have rights prior in right to Respondent, Policy ¶4(b)(i) does not require that.
Complainant claims the disputed <ehow.ws> domain name is confusingly similar to its EHOW mark, because it incorporates the mark in its entirety and merely adds “.ws,” the country code for Western Samoa. The addition of a ccTLD (or a gTLD) must be ignored for the purposes of a Policy ¶4(a)(i) analysis because every domain name requires a ccTLD (or a gTLD) as a matter of syntax. See, e.g., Audigier Brand Mgmt. Grp., LLC v. bai wentao, FA 1286108 (Nat. Arb. Forum Nov. 16, 2009) (holding that even after the “addition of a ccTLD the disputed domain name is still identical to Complainant’s mark.”); see also World Wrestling Fed'n Entm't, Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001) (“The addition of the country code top level domain (ccTLD) designation <.tv> does not serve to distinguish [the disputed domain] names from the complainant’s marks since ‘.tv’ is a common Internet address identifier that is not specifically associated with Respondent.”). In Citigroup Inc. v. CAAB, FA 1231645 (Nat. Arb. Forum Dec. 8, 2008), the complainant was the owner of a CITIBANK mark, and the panel found the respondent’s <citibank.ws> domain name was identical to the complainant’s CITIBANK mark, because it incorporated the mark in its entirety and merely added the “.ws” ccTLD. The disputed <ehow.ws> domain name incorporates Complainant’s EHOW mark in its entirety, and merely adds the “.ws” ccTLD. Complainant has made a sufficient showing to hold the disputed domain name is identical to its EHOW mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent is not commonly known by its <ehow.ws> domain name because there is no relationship or authorization between Complainant and Respondent, and Respondent has failed to submit any evidence to suggest it is commonly known as <ehow.ws>. The WHOIS information now lists the registrant of the disputed domain name as “Omar Ben Ibrahim” (it used to show the privacy service “Domains By Proxy, LLC”). In Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006), the panel concluded respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, to suggest that the respondent was commonly known by the disputed domain name. It seems clear Respondent is not commonly known by the disputed <ehow.ws> domain name, and thus lacks rights in the domain name under Policy ¶4(c)(ii).
Complainant claims Respondent is not using the disputed domain name to make a bona fide offering of goods and services, or a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) and (iii), because Respondent registered the <ehow.ws> domain name to take advantage of the goodwill Complainant has established under its EHOW mark. Any Internet user seeking information on EHOW through a Google search will be directed to Complainant’s websites. Respondent takes advantage of this goodwill by using a domain name that is practically identical to Complainant’s EHOW mark, and diverts website Internet users intending to access the instructional services provided by Complainant under its EHOW mark. It difficult to infer a legitimate use when Respondent uses Complainant’s entire mark in the disputed domain name (and nothing else). It is also difficult to find a bona fide offering of goods or services pursuant to Policy ¶4(c)(i), or a legitimate noncommercial or fair use under Policy ¶4(c)(iii) when Respondent purloins copyrighted portions of Complainant’s own web site.
Respondent registered the disputed domain name using a privacy service. This means Respondent cannot acquire any rights to the disputed domain name in a commercial context.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent’s use of the <ehow.ws> domain name constitutes an attempt to attract Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s EHOW mark, which constitutes bad faith under Policy ¶4(b)(iv). However, Complainant did not claim Respondent did this for financial gain, which prevents the Panel from finding Respondent registered the <ehow.ws> domain name in bad faith under Policy ¶4(b)(iv).
Complainant further alleges that Respondent had actual and constructive knowledge of Complainant’s EHOW mark, which tends to show the registration of <ehow.ws> was in bad faith under Policy ¶4(a)(iii). However, Complainant did not claim Respondent was a competitor. This prevents the Panel from finding bad faith under Policy ¶4(a)(iii).
Based upon an overall analysis of the facts and circumstances of this case, the Panel finds Respondent’s wholesale use of Complainant’s copyrighted material on the disputed domain’s web site without attribution is sufficient to show bad faith registration and use of the domain name.
Respondent registered the disputed domain name using a proxy service (the beneficial owner of the disputed domain was revealed when this proceeding began). In the commercial context, this raises a rebuttable presumption of bad faith registration and use. Since Respondent did nothing to rebut this presumption, it is a sufficient basis for the Panel to conclude Respondent registered and uses the disputed domain name in bad faith.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <ehow.ws> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, July 8, 2013
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