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WIPO Arbitration and
CBS Broadcasting Inc. f/k/a CBS Inc. v. Goldmark
Case No. D2004-0330
1. The Parties
The Complainant is CBS Broadcasting Inc. f/k/a CBS Inc. of New York, New York, United States of America, represented by Naomi B. Waltman of New York, New York, United States of America.
The Respondent is Goldmark of Richardson, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <wbbm.com> is registered with Domain The Net
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 4, 2004. On May 5, 2004, the Center transmitted by email to Domain The Net Technologies Ltd. a request for registrar verification in connection with the domain name at issue. On May 19, 2004, Domain The Net Technologies Ltd. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 26, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2004. The Response was filed with the Center on June 4, 2004.
The Center appointed Sandra Franklin as the sole panelist in this matter on
June 16, 2004. 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
Complainant is the owner and operator of television station WBBM in Chicago.
The mark WBBM has been in continuous use for broadcasting since 1923, and Complainant
has a registered trademark for WBBM dated March 4, 1986. Respondent registered
the domain name <wbbm.com> in January 2004.
5. Parties’ Contentions
Complainant makes the following assertions:
1. Respondent’s <wbbm.com> domain name is confusingly similar to Complainant’s WBBM mark.
2. Respondent does not have any rights or legitimate interests in the <wbbm.com> domain name.
3. Respondent registered and used the <wbbm.com> domain name in bad faith.
Respondent makes the following assertions:
1. Respondent’s domain name <wbbm.com> is not confusingly similar to Complainant’s mark because it is not used in broadcasting.
2. Respondent has a legitimate interest in <wbbm.com> because he uses it in connection with offering dating services.
3. For the foregoing reasons, Respondent did not register and is not using
<wbbm.com> in bad faith.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant has established rights in the mark WBBM through more than 80 years
of continuous use, and the registration of WBBM with the United States Patent
and Trademark Office. Respondent’s domain name <wbbm.com>
is identical to Complainant’s long-standing trademark, but for the addition
of the “.com”. The addition of a top-level domain to a trademark
has consistently been held as an insignificant difference. See Kabushiki
Kaisha Toshiba v. Shan Computers, WIPO
Case No. D2000-0325 (June 27, 2000) finding that <toshiba.net> is
identical to Complainant’s TOSHIBA trademark; see also Charles Jourdan
Holding AG v. AAIM, WIPO Case No. D2000-0403
(June 27, 2000) (finding that Respondent’s domain name <charlesjourdan.com>
is identical to Complainant’s marks). Internet users searching for WBBM
broadcasting information will be confused when they find Respondent’s
unrelated site at “www.wbbm.com.”
The Panel finds that Policy, paragraph 4(a)(i) has been satisfied.
B. Rights or Legitimate Interests
Respondent claims to be using WBBM as an acronym for “Women …Bulletin Boards…Men.” However, when Complainant printed the content found at “www.wbbm.com” on May 3, 2004, only a few links to unrelated sites were shown. In Respondent’s submission, a copy of content from dating websites is now posted at “www.wbbm.com.” In fact, the identical home page is shown at “www.lonelysingles.com,” “www.lovingmore.com” and “www.wbbm.com.” No more than the home page is shown.
Based on what was submitted by both parties, this Panel finds it improbable that Respondent is using the well-known mark WBBM to make a bona fide offer for dating services under <wbbm.com>. It is unlikely that Internet surfers looking for dating services would enter ‘wbbm’ to find them. It is much more likely that WBBM is a target trademark for redirecting traffic to Respondent’s site, which previously held links to a variety of other websites.
There is no evidence that Respondent is known by WBBM. See Gallup, Inc. v. Amish Country Store, FA 96209, National Arbitration Forum (NAF), January 23, 2001, finding that Respondent does not have rights in a domain name when Respondent is not known by the mark.
Respondent has not used the domain name in connection with a bona fide offering of goods or services or in a legitimate noncommercial or fair use. Click-through links to other websites is not enough to show a bona fide offering, and neither is simply copying and pasting a page from another site, apparently done after Complainant filed its Complaint. See Computer Doctor Franchise Systems v. The Computer Doctor, FA 95396 (NAF, September 8, 2000), finding that Respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain name. See also Bank of America Corporation v. Northwest Free Community Access, FA 180704, NAF, September 30, 2003, stating “Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services.”
The Panel finds that Policy, paragraph 4(a)(ii) has been satisfied.
C. Registered and Used in Bad Faith
Video Images was the original registrant of the domain name <wbbm.com>.
Video Images is or was a dealer in domain names and an unsuccessful Respondent
in Daniel C. Marino, Jr. v. Video Images Productions, et al., WIPO
Case No. D2000-0598 (August 2, 2000). Since Complainant filed its Complaint,
the registration information for <wbbm.com> has changed twice. Respondent
denies any knowledge of Video Images. Nevertheless, the actions of both Video
Images and Respondent have had the effect of denying Complainant the use of
<wbbm.com> in connection with its trademark WBBM, and of disrupting Complainant’s
business. Respondent is attracting users to its website and creating a likelihood
of confusion as to the source, sponsorship, affiliation or endorsement of the
links found there. This establishes bad faith under Policy, paragraph 4(b)(iv).
See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (NAF, November
21, 2002), finding that Respondent registered and used the domain name in bad
faith pursuant to Policy, paragraph 4(b)(iv) because Respondent was using the
confusingly similar domain name to attract Internet users to its commercial
Furthermore, Respondent did not deny being aware of Complainant’s mark. See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. February 11, 2002) finding that “[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse.”
The Panel finds that paragraph 4(a)(iii) of the Policy has been satisfied.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy
and 15 of the Rules, the Panel orders that the domain name <wbbm.com>
be transferred to the Complainant.
Dated: June 24, 2004