Home Box Office, Inc. v. URI SNEGOV
Claim Number: FA1508001633248
Complainant is Home Box Office, Inc. (“Complainant”), represented by Alexander J.A. Garcia of Perkins Coie LLP, Washington, USA. Respondent is URI SNEGOV (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hbokids.com> ('the Domain Name') , registered with eNom, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 13, 2015; the Forum received payment on August 13, 2015.
On August 13, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <hbokids.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 August 13, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 2, 2015 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@hbokids.com. Also on August 13, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On September 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant's contentions can be summarised as follows:
Complainant owns registered trade marks for the HBO wordmark and for marks including HBO for broadcasting, media and entertainment services throughout the world, including the USA and Russia.
Respondent only recently acquired the Domain Name on September 9, 2013. Accordingly the Complainant's earliest trade mark registrations predate Respondent's acquisition of the Domain Name by 40 years.
The Domain Name is confusingly similar to the Complainant's HBO marks as it incorporates in full those marks merely adding the generic term 'kids' which only further enhances similarity as Internet users are likely to assume the Domain Name is linked to the Complainant's services for children.
The Complainant's HBO marks are associated exclusively with the Complainant and have no independent dictionary meaning. Therefore, the Respondent has no reason to choose the Domain Name except to create an association with or trade off of the goodwill of Complainant.
The Domain Name resolves to a parked page with links to third party content which does not demonstrate rights under the Policy. The links include a link to 'HBO Play' and 'Free Movies to watch for kids'. Such use of domain names which likely result in revenue or free hosting for the registrant is neither a bona fide offering of goods or services pursuant to Policy 4 (c) (i) or a legitimate non-commercial or fair use pursuant to Policy 4 (c) (iii).
Respondent is not commonly known by the Domain Name. It is not an authorised licensee, distributor, retailer or subsidiary of the Complainant. It has never been authorised to use the Complainant's marks.
The Respondent has no rights or legitimate interests in the Domain Name.
Respondent has engaged in a pattern of typo squatting and infringement of third party marks including domains such as payapl.com, sothwestair.com, whelloffortune.com and wwwchoicehotels.com. Respondent has a business model of acquiring domain names that are identical and confusingly similar to well-known trade marks which is further evidence of Respondent's bad faith in registering the Domain Name.
Respondent in diverting users to third party content for kids is disrupting the Complainant's business and preventing it from operating a website featuring content for kids at the Domain Name.
The Respondent is registering and using the Domain Name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns registered trade marks for the HBO wordmark and for marks including HBO for broadcasting, media and entertainment services throughout the world, including the USA and Russia.
Respondent only recently acquired the Domain Name on September 9, 2013. Accordingly the Complainant's earliest trade mark registrations predate Respondent's acquisition of the Domain Name by 40 years
The Domain Name resolves to a parked page that mentions the Complainant with links to third party content.
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 that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(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.”).
The Respondent does not appear to have any trade marks associated with the name HBO. There is no evidence that he is commonly known by this name and he does not have any consent from the Complainant to use this name. He does not appear to have used the Domain Name for any bona fide offering of services. Currently, the web site attached to the Domain Name points to pay per click links which mention the Complainant and point to third party content.
The Respondent does not explain why he has registered a domain name consisting of the Complainant's trade mark and a generic term indicating an area of business in which the Complainant operates. Given the contents of the site attached to the Domain Name the Panelist infers the Respondent's intentions were to use it for pay per click links, for profit capitalizing on the Complainant's goodwill in its trade mark. See Disney Enters, Inc v Kamble FA 918556 (Nat Arb Forum Mar 27 2007) (holding that the operation of a pay per click web site at a confusingly similar domain name was not a bona fide offering of goods and services under Policy 4 (c) (i), nor a non-commercial or fair use under Policy 4 (c)(iii).
Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
Paragraph 4(b) of the Policy sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including
“by using the domain name [the Respondent] has intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation or endorsement of [its] website or location or of a product or service on [its] website or location.”
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hbokids.com> domain name be TRANSFERRED from Respondent to Complainant.
<<Dawn Osborne>>, Panelist
Dated: September 23, 2015
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