Cable News Network, Inc. f/k/a Cable News Network, LP, LLLP v. Dr0w1ssap / Ryan Machara
Claim Number: FA1010001351239
Complainant is Cable News Network, Inc. f/k/a Cable News Network, LP, LLLP (“Complainant”), represented by Emily S. Mechem of Arent Fox LLP, Washington D.C., USA. Respondent is Dr0w1ssap / Ryan Machara (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cnnnewsalert.com> and <cnnworldnews.net>, registered with Enom.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 8, 2010; the National Arbitration Forum received payment on October 8, 2010.
On October 11, 2010, Enom confirmed by e-mail to the National Arbitration Forum that the <cnnnewsalert.com> and <cnnworldnews.net> domain names are registered with Enom and that Respondent is the current registrant of the names. Enom has verified that Respondent is bound by the Enom 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 October 18, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 8, 2010 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@cnnnewsalert.com and postmaster@cnnworldnews.net. Also on October 18, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 November 15, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cnnnewsalert.com> and <cnnworldnews.net> domain names are confusingly similar to Complainant’s CNN mark.
2. Respondent does not have any rights or legitimate interests in the <cnnnewsalert.com> and <cnnworldnews.net> domain names.
3. Respondent registered and used the <cnnnewsalert.com> and <cnnworldnews.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cable News Network, Inc. f/k/a Cable News Network, LP, LLLP, is an international media and entertainment company. For more than 20 years, it has used its CNN mark to identify its news and information services throughout the world. Complainant holds numerous trademark registrations for its CNN mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,597,839 issued May 22, 1990).
Respondent, Dr0w1ssap / Ryan Machara, registered the domain name <cnnnewsalert.com> on February 5, 2010 and the domain name <cnnworldnews.net> on February 11, 2010. The disputed domain names resolve to a website displaying news articles similar to one Internet users would expect to see on Complainant’s official CNN websites. Throughout the website is a link to a third-party site which collects personally identifiable information from Internet users.
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."
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.”).
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.
Complainant contends it has established rights in the CNN mark. Previous panels have found that trademark registration with a federal trademark authority is sufficient to establish rights in a mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”). Complainant holds numerous trademark registrations of its CNN mark with the USPTO (e.g. Reg. No. 1,597,839 issued May 22, 1990). Therefore, the Panel finds that Complainant has established rights in its CNN mark, pursuant to Policy ¶ 4(a)(i), through trademark registration with the USPTO.
Complainant asserts that Respondent’s disputed domain names are confusingly similar to Complainant’s CNN mark. The disputed domain names incorporate Complainant mark as a whole and differ only by the addition of the descriptive terms “world news” and “news alert” and the addition of the generic top-level domains (“gTLD”) “.com.” and “.net.” The Panel finds that the addition of descriptive terms fails to properly distinguish the disputed domain names from Complainant’s mark as the terms merely describe Complainant’s business in broadcast news and information. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business). The Panel also finds that the addition of gTLDs does not sufficiently differentiate the disputed domain names from Complainant’s mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Thus, the Panel concludes that Respondent’s disputed domain names are confusingly similar to Complainant’s CNN mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been met.
Complainant asserts that Respondent lack rights or legitimate interests in the disputed domain names. Complainant has established a prima facie case in support of its allegations under Policy ¶ 4(a)(ii), therefore, the burden shifts to the Respondent to show that is does have rights or legitimate interests of the disputed domain names. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent lacks rights or legitimate interests. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests under Policy ¶ 4(c). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).
Complainant asserts that Respondent is not commonly known by the disputed domain names. Complainant argues that it has not authorized or licensed Respondent to use or register its CNN mark in the disputed domain names. The WHOIS information identifies Respondent as “Dr0w1ssap / Ryan Machara,” which is not similar to the disputed domain names. The is no additional evidence in the record that would support a finding that Respondent is commonly known by the disputed domain names, therefore, the Panel concludes that Respondent is not commonly known by the <cnnnewsalert.com> and <cnnworldnews.net> domain names pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent uses the disputed domain names to resolve to a website which displays Complainant’s CNN mark and news articles Internet users would expect to see on one of Complainant’s official CNN websites. The resolving website also features third-party hyperlinks, from which Respondent likely receives click-through fees. The Panel finds that Respondent’s use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair user under Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)).
Complainant contends that the disputed domain names are being used a part of a fraudulent phising scheme. The news articles displayed on the resolving websites pertains to government grants and prompts readers to click on a third-party link throughout, in order to apply for grants. Readers are then asked to provide personally identifiable information such as name, phone number, and email address, which is likely used in connection with an illegal phising scheme. The Panel finds that Respondent’s use of the disputed domain names in an attempt to gain personally identifiable information from Internet users is not a bona fide offering of good or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(iii). See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been met.
Respondent’s disputed domain names resolve to a website featuring Complainant’s mark and news articles of a type Internet users would expect to see on Complainant’s official CNN websites. Complainant contends that Respondent’s use of the disputed domain names disrupts its business since it diverts Internet users searching for Complainant’s news services to Respondent’s website. The Panel finds that Respondent’s use of the confusingly similar disputed domain names disrupts Complainant’s business of news and information under Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business).
The Panel infers that Respondent likely receives click-through fees from the previously mentioned third-party links. Internets users searching for Complainants news and information services may find Respondent’s website instead and then become confused as to Complainant’s sponsorship of, and affiliation with, the disputed domain names, resolving website, and third-party links. Respondent attempts to gain from this confusion through the receipt click-through fees. The Panel finds that Respondent’s use of the disputed domain names constitutes bad faith use and registration under Policy ¶ 4(b)(iv). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 16, 2007) (concluding that Internet users would likely be confused as to the source or sponsorship of the <blackstonewine.com> domain name with the complainant because the respondent was redirecting Internet users to a website with links unrelated to the complainant and likely receiving click-through fees in the process); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Complainant asserts that Respondent’s disputed domain names are being used a part of a fraudulent phising scheme. The disputed domain names resolve to a website displaying a news article on government grants. The website prompts readers to click on a third-party link throughout, in order to apply for grants. Readers are then asked to provide personally identifiable information such as name, phone number, and email address, which is likely used in connection with an illegal phising scheme. The Panel finds that Respondent’s use of the disputed domain names in an attempt to gain personally identifiable information is evidence of bad faith use and registration under Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates).
The Panel finds that Policy ¶ 4(a)(iii) has been met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cnnnewsalert.com>, ,<cnnworldnews.net> domain name be TRANSFERRED.
John J. Upchurch, Panelist
Dated: November 22, 2010
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