Westmore · UDRP DecisionPink-tv.website
The Panel ordered transfer of <pink-tv.website>. It found the domain confusingly similar to the Complainant’s PINK T.V. trademark, that the Respondent lacked rights or legitimate interests, and that registration and use were in bad faith. The domain had previously resolved to a video-streaming website offering services of the same kind as those offered by the Complainant, although it was inactive when the decision was issued.
The timeline behind pink-tv.website
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind pink-tv.website — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that minor punctuation changes do not prevent confusing similarity where a domain otherwise reproduces a trademark. It also shows that a domain’s later inactivity does not erase evidence of earlier use targeting the trademark owner’s field of activity. Here, prior use for video streaming was central to both the absence of legitimate interests and the finding of bad-faith registration and use.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Pink TV v. WhoisGuard, Inc. / Dhodo Allon Case No. D2019-0382 1. The Parties The Complainant is Pink TV of Paris, France, represented by Cabinet Promark, France. The Respondent is WhoisGuard, Inc. of Panama / Dhodo Allon, Jawa Barat, Indonesia, self-represented. 2. The Domain Name and Registrar The Disputed Domain Name <pink-tv.website> is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 19, 2019. On February 19, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 19, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 21, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 21, 2019. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 27, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 19, 2019. The Center received an informal communication from the Respondent on March 12, 2019. The Respondent did not submit any formal Response. Accordingly, the Center notified the Parties of the commencement of the Panel appointment process on March 20, 2019. The Center appointed Pablo A. Palazzi as the sole panelist in this matter on March 29, 2019. 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. 4. Factual Background The Complainant is a French Company which offers TV channel, VOD services, a website with online forums and contents related to entertainment, culture, education and mobile application, under and by reference to the trademarks PINK and PINK TV. The Complainant operates since 2004. The Complainant is the owner of, inter alia ; the following trademarks registrations: - European Union Trademark PINK (figurative) Registration No. 005153358, registered on January 28, 2003; - European Union Trademark PINK T.V. Registration No. 002648475, registered on July 22, 2003; and - European Union Trademark PINK, Registration No. 009595869, registered on February 8, 2017. Moreover, the Complainant is the owner of the domain name <pinktv.fr> registered on August 30, 2001. The Disputed Domain Name <pink-tv.website> was registered on January 13, 2019. The Disputed Domain Name is currently inactive. However, the Complainant presented evidence, that the Disputed Domain Name resolved to a video streaming website, providing free access to movies and TV shows. A. Complainant Identical or confusing similarity The Disputed Domain Name entirely integrates the Complainant’s trademarks PINK T.V. and PINK. Regarding the addition of the new Top‑Level Domain (“TLD”) “.website”, which is technically required to operate the Disputed Domain Name; this does not avoid the confusion between the Disputed Domain Name and the Complainant´s trademarks. Moreover, the addition of the hyphen between the words “pink” and “tv”, does not avoid the confusion between the Disputed Domain Name and the Complainant´s trademarks. Finally, the fact that the dots after the “T” and “V” letters of the Complainant’s trademark are not reproduced in the Disputed Domain Name does not avoid the confusion between the Disputed Domain Name and the Complainant´s trademarks. Consequently, the Disputed Domain Name is confusingly similar to the Complainant´s trademarks. Rights or legitimate interests The Complainant states that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. Moreover, the Respondent has never been commonly known through the Disputed Domain Name. In addition, the Respondent has no connection with the Complainant and has no license or authorization by the Complainant to use the Complainant’s trademark. Finally, the Respondent has not registered the Disputed Domain Name in connection with a bona fide intent and it is not making a legitimate noncommercial or fair use of the Disputed Domain Name. Registration and use in bad faith The Complainant states that the Disputed Domain Name was registered and is being used by the Respondent in bad faith, as it is used in an intentional attempt to attract Internet users to the Disputed Domain Name website. Moreover, the services provided in the Disputed Domain Name are the same as the Complainant’s. In addition, the Respondent´s identity is hidden on his website and the WhoIs databases, which strengthens the presumption of bad faith. Thus, the Disputed Domain Name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. However, the Center did receive one brief email from the Respondent in a language other than English that the Panel couldn’t understand. A Google translation seems to indicate that the Respondent said he had deleted the website. As no additional communications followed, and the language of this proceeding is English, the Panel has not investigated the message further. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which the Complainant must satisfy with respect to the Disputed Domain Name at issue in this case: (i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has trademarks with respect to the term PINK and PINK T.V. Based on the evidence submitted, the Panel finds that the Disputed Domain Name <pink-tv.website> is confusingly similar to the Complaint’s trademark PINK T.V. The Disputed Domain Name wholly incorporates the Complainant’s trademark as its only distinctive element. Furthermore, the Disputed Domain Name contains the Complainant’s PINK T.V. trademark in its entirety; the addition of the hyphens between the words “pink” and “tv” does not negate the confusing similarity. The same happens with the lack of the dots after the “T” and “V” letters. The TLD “.website” does not change this finding, since the TLD is generally disregarded in such an assessment of confusingly similarity. Therefore, the Panel finds that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name: (i) Before any notice to you of the dispute, your use of, demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) You (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) You are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service at issue. There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the trademark in the Disputed Domain Name. The Complainant has prior rights in the trademark which precede the Respondent’s registration of the Disputed Domain Name. The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name. The Respondent had the opportunity to demonstrate its rights or legitimate interests, but it did not reply to the Complainant’s contention. There is no evidence that the Respondent is commonly known by the Disputed Domain Name or any similar name. Furthermore, the Disputed Domain Name was used for the same services which offer the Complainant. As such the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Disputed Domain Name <pink-tv.website> is currently inactive. However, the fact that the Disputed Domain Name redirected to a video streaming website at the time of filing the Complainant, which is the same service offered by the Complainant, evidences that the Respondent was well aware of the Complainant prior rights and business, since the Disputed Domain Name was registered on January 13, 2019, while the Complainant had the registration of its trademarks since 2003. The Respondent is using the Disputed Domain Name to intentionally attempt to attract Internet users to its website creating a likelihood of confusion with the PINK T.V. trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website as established by paragraph 4(b)(iv) of the Policy. Therefore, taking all circumstances into account and for all above reasons, the Panel concludes that there is bad faith in the use and registration of the Disputed Domain Name. The third element of paragraph 4(a) of the Policy is, therefore, satisfied. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <pink-tv.website> be transferred to the Complainant. Pablo A. Palazzi Sole Panelist Date: April 4, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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