Zeeradio.com

The timeline behind zeeradio.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Zee TV USA, Inc. v. Indermohan Chabra Claim Number: FA0702000914921 PARTIES Complainant is Zee TV USA, Inc. (“Complainant”), represented by Kay Lyn Schwartz, of Gardere Wynne Sewell, LLP, 1601 Elm Street, Suite 3000, Dallas, TX 75201. Respondent is Indermohan Chabra (“Respondent”), 603 Newberry Drive, Streamwood, IL 60107. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <zeeradio.com>, registered with Go Daddy Software, Inc. PANEL 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. Sandra J. Franklin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 9, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 12, 2007. On February 12, 2007, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <zeeradio.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On February 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 6, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@zeeradio.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On March 9, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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." 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. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <zeeradio.com> domain name is confusingly similar to Complainant’s ZEE mark. 2. Respondent does not have any rights or legitimate interests in the <zeeradio.com> domain name. 3. Respondent registered and used the <zeeradio.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, ZEE TV USA, Inc., holds a United States Patent and Trademark Office (“USPTO”) registration for the ZEE mark (Reg. No. 3,097,2002 issued May 30, 2006). Complainant uses its registered ZEE mark in concert with a broader family of ZEE-formative marks including ZEE TV, ZEE CINEMA, ZEE MUSIC and ZEE NEWS, in connection with its business of providing a range of broadcast and entertainment services through various media. While Complainant is particularly focused on the South Asian language market, its broadcast and entertainment services are also used in the United Kingdom, United States, Canada and Africa. Complainant has registered multiple domain names including the ZEE mark to provide its services to Internet users. Respondent registered the <zeeradio.com> domain name on July 16, 2006. Respondent first used the disputed domain name to operate a pass-through portal with links to various third-party websites including some offering broadcast and entertainment services in direct competition with Complainant. Respondent then began to use the disputed domain nameas a vehicle to redirect Internet users to another website located at <pbshost.com>, which also offers services in competition with Complainant. DISCUSSION 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. Identical and/or Confusingly Similar The Panel finds that Complainant’s USPTO registration of the ZEE mark, which predates Respondent’s registration of the <zeeradio.com> domain name, establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”). Respondent’s <zeeradio.com> domain name is confusingly similar to Complainant’s ZEE mark. The disputed domain name includes Complainant’s mark in its entirety. In Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001), the panel concluded that “the fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks.” The disputed domain name also includes the term “radio.” As “radio” is a term that describes one of the many aspects of Complainant’s broadcast and entertainment services, the term “radio” does not distinguish the disputed domain name from Complainant’s mark. Faced with a similar addition of a descriptive term to the complainant’s mark, the panel in Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001), found that the <hoylecasino.net> domain name was confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant was engaged, does not take the disputed domain name out of the realm of confusing similarity. Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests The panel in G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002), stated that, “because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).” This Panel finds that Complainant’s assertion that Respondent lacks rights and legitimate interests in the disputed domain name does establish a prima facie case and the burden has been shifted to Respondent to refute Complainant’s assertions with evidence and arguments in support of its rights or legitimate interests. This Panel concurs with the reasoning of the panel in Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002), which found that, “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.” The Panel will nevertheless evaluate the available evidence to determine whether Respondent does have rights or legitimate interests pursuant to Policy ¶ 4(c). Respondent first used the disputed domain name to operate a portal with links to competing third-party websites. Respondent then began to use the <zeeradio.com> domain name to redirect Internet users to its website located at <pbshost.com> which also offered services in direct competition with Complainant. Neither of these uses constitutes a bona fide offering of goods or services or a legitimate noncommercial or fair use as contemplated by Policy ¶¶ 4(c)(i) and (iii). In TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002), the panel found that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services. Similarly, in DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002), the panel stated that, “Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.” Applying these findings to the case at hand, the Panel finds that Respondent’s use of the disputed domain name is not one contemplated by Policy ¶¶ 4(c)(i) and (iii) and does not establish for Respondent rights or legitimate interests in the disputed domain name. Further, there is no available evidence suggesting that Respondent is commonly known by the <zeeradio.com> domain name. The panel in Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003), states that WHOIS information can be used to determine whether the respondent is commonly known by the disputed domain name. In this dispute, Respondent’s WHOIS information identifies Respondent as “Indermohan Chabra,” a name with no obvious relationship to the disputed domain name. In similar circumstances, the panel in Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003), held that, “Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.” The Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent’s <zeeradio.com> domain name redirects Internet users seeking Complainant’s services to Respondent’s website which offers broadcast and entertainment services in direct competition with Complainant. The panel in Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003), found that, “Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).” In EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000), the panel found bad faith where the respondent’s sites passed users through to the respondent’s competing business. The Panel finds that in this case Respondent’s use of the disputed domain name disrupts Complainant’s business and evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iii). Respondent is using the confusingly similar <zeeradio.com> domain name to redirect Internet users to its website at <pbshost.com>. Because of the confusingly similar domain name, coupled with the similarity of services offered by Complainant and Respondent, Internet users may mistakenly believe that Respondent’s website is sponsored by or affiliated with Complainant. Respondent is presumably profiting from this confusion both through the collection of pay-per-click fees from advertisements and third party links and from consumer purchases of its competing services. The panel in Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003), found such use to be evidence of bad faith registration and use, saying that “Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.” The panel in TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003), applied similar reasoning, finding that, “although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.” The Panel finds that bad faith registration and use pursuant to Policy ¶ 4(b)(iv) is also evident in the present dispute. The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <zeeradio.com> domain name be TRANSFERRED from Respondent to Complainant. Sandra J. Franklin, Panelist Dated: March 16, 2007 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.