Generic Top Level Domain Name (gTLD) Decisions

The Complainant is The Forward Association, Inc. ("Complainant"). The Respondent is Enterprises Unlimited, ("Respondent").

The domain names at issue are "wevd.com", "wevd.net", registered with Network Solutions.

The undersigned (or panelist) 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 the panelist in this proceeding.

James Alan Crary

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on August 25, 2000; The Forum received a hard copy of the Complaint on August 25, 2000.

On 08/28/00, Network Solutions confirmed by e-mail to The Forum that the domain names "wevd.com" and "wevd.net" " are registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On August 28, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 18, 2000 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@wevd.com and postmaster@wevd.net by e-mail.

On September 22, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed James Alan Crary as Panelist.

The Complainant requests that the domain names be transferred from the Respondent to the Complainant.

A. Complainant

WEVD is a registered servicemark with the US Patent and Trademark Office. Complainant has operated the AM radio station WEVD and predecessor stations since 1928. The two disputed domain names wevd.com and wevd.net are identical to Complainant’s service mark.

Complainant asserted that listeners are confused since when they surf the web using the radios call letters as a search string they are directed to Respondent’s web site at www.wevd.com. Station personnel have repeatedly had to disclaim affiliation with Respondents web site.

Complainant asserted that Respondent had no legitimate interests or right in the disputed domain name. Respondent had not made any use of the domain name or prepared for use prior to the existence of a dispute. Respondent was not commonly known by the disputed domain name nor was there a legitimate noncommercial or fair use.

Respondent paid Complainant’s AM station to broadcast Respondent’s 60-to-90 second reviews, over a five-year period. Wevd.com was registered with Network Solutions on December 29, 1997. Complainant did not learn of the registration until the summer of 1999.

During the summer of 1999 Respondent approached Complainant offering to transfer the wevd.com to Complainant. At that time there was no content on the web site. In December 1999 Respondent registered wevd.net. By January 7, 2000 there was content appearing on the web site. Icons on the web site linked to Respondents reviews which made up the content of the site.

After Complainant refused to agree to Respondent’s terms for transfer of the wevd.com Respondent created the business name "Wine Entertainment Ventures Dining" which did not appear until March 2000 on the web site. Complainant maintained that Respondent had never been known by the business name "Wine Entertainment Ventures Dining" and had not advertised or promoted the name.

At the end of his broadcasted reviews on WEVD AM Respondent tells listeners they can find his reviews at "Punch In Syndicated Reviews" not "Wine Entertainment Ventures Dining".

Complainant maintained "Wine Entertainment Ventures Dining" was Respondents creation, which bore a cursory resemblance to the purpose of his business restaurant reviews. The words wine, entertainment, ventures, and dining themselves did nothing to describe his business or its purpose and where chosen only to create an independent, but false basis to claim "wevd" as part of a domain name dispute.

Respondent acted in bad faith since he knew he would attract Internet users to his web site by creating confusion with Complainants service mark who would be led to believe that the site was that of Complainants radio station or that it was approved or endorsed or affiliated with the Station.

B. Respondent

In the response Respondent sets forth in detail his experience in writing and broadcasting reviews. Respondent writes reviews in the field of travel, restaurants, entertainment and wine.

Respondent proposed the idea developing a WEVD web site to a representative of the Complainant. The site would house the reviews which had been broadcast at WEVD AM. He believed that such a web site would be good for himself, the station, and his fans.

Mr. Bird, the representative of Complainant, did not express interest in the project but did not object after becoming aware of the domain name registration. Complainant initiated contact with Respondent about acquiring the disputed domain name.

Respondent maintained that Policy 4b(ii) did not apply since there had been no showing of a pattern of objectionable conduct. Respondents purpose in registering the domain name was to identify restaurant reviews he had done for WEVD AM.

Further Respondent maintained that Complainant had not put on proof to support that the registration of domain name disrupted the business of the Complainant.

The content of Respondent’s web site WEVD stands for "Wine Entertainment Ventures Dining" and contains Respondent’s restaurant, travel, wine, entertainment, Broadway, off Broadway, and Cabaret reviews.

Respondent maintained that when the idea of WEVD web site was "broached" he (Respondent) was told he could do it on his own. Respondent maintained he had a legitimate interest in using WEVD because the content on the site was WEVD reviews.

Respondent maintained that he had a good idea and chose a domain name reflective of his content. He was candid with the Complainant about his plans. Complainant did not object, and it was unfair for Complainant to object now.

1. The Complainant is the owner, has a registered servicemark for the call sign WEVD.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

It was concluded that the disputed domain name wevd.com and wevd.net are identical to Complainants servicemark WEVD. It should be noted that when a trademark is composed in whole or in part of a domain name, neither the beginning of the URL (http://www.), nor the TLD (.com) have any source indicating significance. Those designations are merely devices that every Internet site provider must use as part of its address. See Jewelery.com v. Idealab! Form No. FA000700095242. Evidence of lack of actual confusion is irrelevant since the test is confined to a consideration of the disputed domain name and the trade or service mark. Gateway, Inc. v. Pixelera.com, Inc. WIPO D2000-0109.

Section 4c sets forth circumstances which are found by the Panel to be proved establish legitimate interests in the domain name on behalf of Respondent. These include "(i) before any notice to you of the dispute, your use of, or demonstratable preparations to use, the domain name or a name responding 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 servicemark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or servicemark at issue".

Respondent registered the domain name in December of 1997 but did not launch the web site or develop content for the web site until after negotiations for transfer of wevd.com were underway in the summer of 1999. Mere registration of a domain name does not vest the registrant with rights as against a trademark holder. If that were the case, then every registrant would have rights or legitimate interests and the purpose of the Policy would be defeated.

The evidence here did not support a finding that complainant knew of Respondents plans and acquiesced in them. Complainant was unaware Respondent had acquired the wevd.com domain name.

There is no evidence to indicate that the Respondent was commonly known by the domain name nor that there was any legitimate noncommercial or fair use without intent of commercial gain. It was the conclusion of the Panel that the Respondent had failed to demonstrate any rights or legitimate interests in the domain name in question.

Little weight was given to Respondents assertions that "wevd" referred to "Wine Entertainment Ventures Dining". This appeared to be nothing more than an invention created to support a "legitimate" association with Respondents registration of the disputed domain name. It was noted that the Respondent is not commonly known as "Wine Entertainment Ventures Dining".

The Panel concluded that Respondent registered and used the disputed domain name in bad faith.

It was clear from the evidence that Respondent knew or should have known of Complainants long standing well-known work when Respondent registered the wevd.com. The domain name is so obviously connected with complainant and its services that its very use by someone with no connection with Complainant suggests opportunistic bad faith. See Deutsche Bank AG v. Diego-Arturo Bruckner, D2000-0277 (WIPO May 30, 2000).

The Respondent’s connection to the Complainant was essentially that of an advertiser on the Complainant’s radio station. He paid to broadcast his reviews to Complainants listening audience. He had no connection with complainant which entitled him to appropriate Complainant’s name and mark.

The evidence supports a finding of bad faith use under paragraph 4(b)(i). Respondent made no use of the wevd.com name, until Complainant discovered that respondent had registered wevd.com. When Complainant sought to acquire the name, Respondent began posting content which was linked to the wevd.com web site. This was followed by the registration of wevd.net. Both were done in the attempt to enhance Respondent’s bargaining position.

The consideration for transfer of wevd.com was not "nominal" as Respondent asserts.

Where he had to pay to have his reviews broadcast in the past, now if Complainant agreed to the terms proposed by Respondent, Respondent’s reviews would be broadcast for free, twice daily during the prime "drive time" portion of the day, when the station had its largest listening audience. Complainant would also have to pay Respondent expenses associated with writing various reviews, and provide a place for Respondent to prepare or produce his reviews. Initially the contract was for a period of five years with provisions to extend the agreement for two additional five-year terms. Complainant’s calculation that over five years the free airtime alone was worth $130,000 was supported by the evidence.

There was also bad faith registration and use under paragraph 4(b)(iv) of the Policy. The evidence supported a finding that Respondent intentionally attempted to attract Internet users to its web site or other on-line location by creating the likelihood of confusion with Complainant’s mark as to the sponsorship of the web site.

Respondent offered no rebuttal to Complainants contention that members of its listening audience were confused since they would end up at Respondents web site when they used Complainant’s mark as a search string. By his preemptive registration Respondent sought to commercially gain by selling domain name to Complainant in exchange for a lucrative contract.

Based on the foregoing it was concluded that Complainant has established that it is entitled to relief under Section 4(i) of the Policy. It is therefore ordered that Respondent transfer the disputed domain names wevd.com and wevd.net to Complainant.