DECISION

Television Broadcasts Ltd.  v. TVBS Network

Claim Number: FA0111000102517

PARTIES

Complainant is Television Broadcasts Ltd., HONG KONG (“Complainant”).  Respondent is TVBS Network, Dubuque, IA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <tvbs.net>, registered with Intercosmos.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 23, 2001; the Forum received a hard copy of the Complaint on November 30, 2001.

On November 29, 2001, Intercosmos confirmed by e-mail to the Forum that the domain name <tvbs.net> is registered with Intercosmos and that Respondent is the current registrant of the name.  Intercosmos has verified that Respondent is bound by the Intercosmos 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 December 4, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 26, 2001 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@tvbs.net by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On January 7, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Harold Kalina (Ret.) as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 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 the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <tvbs.com> domain name is identical to Complainant's TVBS mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response

FINDINGS

Since 1967, Complainant has used the TVB mark in relation to its wireless commercial television station.  Since 1993, Complainant has used the TVBS mark in relation to its TVB Super Channel.  The TVBS channel is the leader in Taiwan's cable TV market.  The channel is available in five million cable homes, which represents 78% of all households in Taiwan.  The TVBS programs are also available to people outside of Taiwan in Singapore, Malaysia, New Zealand, Phillippines, Indonesia, and North America via a new 24-hour satellight service called TVBS Asia. Complainant is the largest producer of Chinese language programming in the world and has distributed its own programs to all of the Chinese communities in the world.  Complainant has registered the mark in China, Taiwan, Singapore, Malaysia, and Thailand.  Complainant's current website is located at <tvbs.com.tw>.

Respondent registered the <tvbs.net> domain name on July 12, 2001.  Respondent has not developed a website at the domain.

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the 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.

Identical and/or Confusingly Similar

Complainant, through registration and use, has established that it has rights in the TVBS mark.  Furthermore, Respondent's <tvbs.net> domain name is identical to Complainant's mark because it incorporates the entirety of Complainant's mark and merely adds the top-level domain ".net".  The addition of a top-level indicator such as ".net" does not create a distinct mark capable of overcoming a claim of identical or confusing similarity.  See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Furthermore, when Respondent fails to submit a Response, the Panel is permitted to make all inferences in favor of Complainant.  See 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”).

There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by the <tvbs.net> domain name pursuant to Policy ¶ 4(c)(ii).  See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).

There is no evidence that Respondent has rights or legitimate interests in respect to the disputed domain name.  See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s THE BODY SHOP trademark and service mark”).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is thought to have been on notice of the existence of Complainant's mark at the time Respondent registered the infringing <tvbs.net> domain name because Complainant’s name and tradename have been well known world wide.  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) (finding that, in light of the notoriety of Complainants' famous marks, Respondent had actual or constructive knowledge of the BODY BY VICTORIA marks at the time she registered the disputed domain name, and such knowledge constitutes bad faith).

The <tvbs.net> domain name is identical to Complainant's mark and the Internet user will likely believe that there is an affiliation between Respondent and Complainant.  Registration of the <tvbs.com> domain name, despite its being identical to
Complainant's mark, is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).  See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).

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 the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <tvbs.net> be transferred from Respondent to Complainant.

Judge Harold Kalina (Ret.), Panelist

Dated: January 17, 2002

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