URS DEFAULT DETERMINATION
Time, Inc. v. WhoisGuard, Inc.
Claim Number: FA1611001701536
DOMAIN NAME
<people-magazine.xyz>
PARTIES
| Complainant: Time, Inc. of New York, NY, India | |
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Complainant Representative: Ladas & Parry LLP
Dennis S Prahl of New York, NY, United States of America
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| Respondent: WhoisGuard, Inc. WhoisGuard Protected of Panama, Panama, II, PA | |
REGISTRIES and REGISTRARS
| Registries: XYZ.COM LLC | |
| Registrars: Namecheap |
EXAMINER
| 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 Examiner in this proceeding. | |
| Douglas M. Isenberg, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: November 4, 2016 | |
| Commencement: November 8, 2016 | |
| Default Date: November 23, 2016 | |
| Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Findings of Fact: Complainant states the following: “The Complainant is a magazine publisher in the business of publishing, distributing and marketing magazines and other products under various trademarks, including PEOPLE. The PEOPLE Magazine, founded in 1974, has the largest audience of any American Magazine according to the Association of Magazine Media…. “The Complainant owns trademark registrations for the PEOPLE word mark, the PEOPLE (Logo) mark and other PEOPLE- formative marks (collectively, the ‘PEOPLE marks’) in over 20 countries including the United States. The Complainant has continuously used the PEOPLE marks since the year 1974 till date. “The offending domain, people-magazine.xyz, includes the entire PEOPLE mark, while adding the generic top-level domain name (‘gTLD’) ‘.xyz’, and as a suffix, a hyphen and the generic term ‘magazine’. “It’s been held that gTLD’s are irrelevant when conducting similarity analysis (See Isleworth Land Co. v. Lost in Space, SA, FA 117330, NAF Sept. 27, 2002). It’s also been held that a hyphen does not create a new or different mark nor alters the likelihood of confusion with a complainant’s trademarks (see Easy Gardener Products, Inc. v. Whois Privacy Protection Service, Inc., WIPO Case No. D20101185). Finally, it’s been held that addition of a generic term that describes Complainant’s products does not distinguish the offending domain (see Victoria’s Secret Stores Brand Management, Inc. v. SWE Inc., FA1006001328364 NAF July 15, 2010)…. “There is no evidence that the Respondent made any effort to use the offending domain in connection with bona fide goods or services or that it has been commonly known by the offending domain or that it has been making a legitimate non-commercial or fair use of the offending domain. “Respondent registered the offending domain without Complainant’s authorization or consent. The Respondent is using the offending domain to advertise beauty products in the form of magazine articles and creating a likelihood of confusion with the Complainant’s PEOPLE mark as to the source, sponsorship, affiliation or endorsement…. Such use demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use…. “The use of the title of a well-known publication in combination with the generic term that identifies this variety of publications is a typical expression of conduct of those that intentionally attempted to attract Internet users to a web site, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement. (see Dennis Publishing, Inc. v. Arjun WIPO Case No. D2002-0997). “Further, the Respondent is using the offending domain to trick consumers into believing that the beauty products emanate from or are sponsored and/or endorsed by the Complainant’s PEOPLE magazine by styling the advertisement in the form of a magazine article and specifically stating ‘featured in… PEOPLE…’ and using the PEOPLE (Logo). The webpage contains a link which redirects consumers to another website to purchase the advertised beauty products.” |
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Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant The Examiner determines that the registered domain name is confusingly similar to a word mark for which the Complainant holds a valid national or regional registration and that is in current use. Inclusion of the word "magazine" in the disputed domain name only enhances confusing similarity because Complainant's PEOPLE trademark is used by Complainant in connection with a magazine. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Examiner determines that the Registrant has no legitimate right or interest to the domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant The Examiner determines that that the domain name was registered and is being used in bad faith because the domain name has been used in connection with a website that is likely to cause confusion with complainant's trademark because, as described by Complainant and as shown in a screenshot provided by Complainant, "Respondent is using the offending domain to trick consumers into believing that the beauty products emanate from or are sponsored and/or endorsed by the Complainant’s PEOPLE magazine by styling the advertisement in the form of a magazine article and specifically stating ‘featured in… PEOPLE…’ and using the PEOPLE (Logo)." FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for
the duration of the registration:
|
Douglas M. Isenberg Examiner
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