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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

MySpace, Inc. v. Bhservcom

Case No. DTV2006-0005

 

1. The Parties

The Complainant is MySpace, Inc., California, United States of America, represented by Cantor Colburn LLP, United States of America.

The Respondent is Bhservcom, Manama, Kingdom of Bahrain.

 

2. The Domain Name and Registrar

The disputed domain name <myspace.tv> is registered with Tucows.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 27, 2006. On December 28, 2006, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On December 29, 2006, Tucows 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 Complainant filed an amendment to the Complaint on January 16, 2007. The Center verified that the Complaint together with the amendment to 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 January 18, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 7, 2007. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on February 8, 2007.

The Center appointed Alan L. Limbury as the sole panelist in this matter on February 21, 2007. 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 disputed domain name <myspace.tv>, was registered by Respondent on June 26, 2006.

Complainant is the owner of several registrations for the trademark MYSPACE, including in the United States (No. 3183151, registered on December 12, 2006); Australia (No. 1093287, registered on September 14, 2005); Benelux (No. 782452, registered on December 8, 2005); Chile (No. 759755, registered on June 1, 2006); the European Union (No. 871688, registered on September 14, 2005); Mexico (No. 938430, registered on September 19, 2005); Singapore (Nos. T06/00279D and T06/00280, both registered on September 14, 2005); and Taiwan, Republic of China (No. 1218079, registered on July 1, 2006).

Complainant is also the registered owner of trademark registrations in several countries for the mark MYSPACE A PLACE FOR FRIENDS.

Complainant, a Delaware Corporation, asserts that it is also the owner of the United States registration for the mark MYSPACE, No.2,911,041, registered on December 14, 2004 in the name of Euniverse, Inc, a Nevada Corporation. There is no evidence before the Panel of Complainant’s ownership of this registration.

Complainant is the registrant of the domain name <myspace.com> and of several other gTLD and ccTLD domain names incorporating its MYSPACE mark. It operates a website at “www.myspace.com” using the MYSPACE mark, offering ‘a social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and new friends’. In November 2006, that website recorded 38.7 billion United States page views, even more than Yahoo! Searches conducted in the top Internet search engines, Google, Yahoo! and MSN have revealed Complainant’s website as the number one search result for the term “MYSPACE”.

Respondent’s only use of the disputed domain name since registration has been to post a web page indicating that it is for sale and giving Respondent’s contact details. In response to an enquiry on December 7, 2006, made on behalf of the undisclosed Complainant, Respondent indicated that the domain name was for sale and that ‘the price now reaches 50,000 US$’.

 

5. Parties’ Contentions

A. Complainant

Complainant says its MYSPACE mark should properly be considered a famous mark, having gained worldwide recognition and having been firmly associated with Complainant prior to Respondent’s registration of the disputed domain name. The disputed domain name is identical to Complainant’s MYSPACE mark. Respondent cannot demonstrate that it was unaware of Complainant’s mark when registering the domain name. Respondent can demonstrate no legitimate interest in the disputed domain name. There is no relationship between the parties that would give rise to any permission by Complainant to Respondent to own or use the disputed domain name. The offer for sale is indisputable evidence that Respondent registered and has used the disputed domain name in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions. The Panel is satisfied that Respondent was duly notified of the Complaint.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules requires the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

To qualify for cancellation or transfer, Complainant must prove each element of paragraph 4(a) of the Policy, namely:

i. the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

ii. Respondent has no rights or legitimate interests in respect of the domain name; and

iii. the disputed domain name has been registered and is being used in bad faith.

A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL International PLC v. MARK FREEMAN, WIPO Case No. D2000-1080 and ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al., WIPO Case No. D2000-0848.

A. Identical or Confusingly Similar

Although some of Complainant’s trademark registrations post-date Respondent’s registration of the domain name, paragraph 4(a)(i) of the Policy does not require the trademark rights to have arisen before the domain name registration: Valve Corporation v. ValveNET, Inc., ValveNET, Inc., Charles Morrin, WIPO Case No. D2005-0038. Complainant has established that, as at the filing of the Complaint, it has registered trademark rights in many countries in the MYSPACE mark.

In considering identity or confusing similarity, the “.tv” ccTLD is to be disregarded: VAT Holding AG v Vat.com, WIPO Case No. D2000-0607. The disputed domain name is clearly identical to Complainant’s MYSPACE mark. Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy lists three circumstances that can demonstrate a registrant’s rights or legitimate interest in the disputed domain name:

(i) before any notice to you of the dispute, your use of, or 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;

(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;

(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 mark.

Once a complainant establishes a prima facie case against a respondent in relation to this element, the burden is on the respondent to provide evidence of its right or legitimate interests under paragraph 4(c) of the Policy: Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753.

Complainant’s claim that its MYSPACE mark is famous is uncontradicted and there is evidence before the Panel to support it. The Panel accepts that Respondent is not affiliated with or a licensee of Complainant; is not authorized by Complainant to use the MYSPACE mark as a domain name or otherwise; and is not commonly known by the domain name. Complainant has established a prima facie case. Respondent has not attempted to demonstrate that it has any rights or legitimate interest in the disputed domain name. Accordingly, Complainant has established this element of its case.

C. Registered and Used in Bad Faith

The evidence establishes that the only use to which the domain name has been put has been to lead to a web page displaying a notice to the effect that the disputed domain name is for sale. Respondent has indicated that the price is 50,000 US$. The Panel is satisfied that the primary purpose of Respondent in registering the disputed domain name was to sell it to Complainant or to a competitor of Complainant for a price exceeding Respondent’s out-of-pocket expenses directly associated with the domain name. Pursuant to the Policy, paragraph 4(b), this is evidence of both bad faith registration and bad faith use. Accordingly, Complainant has established this element of its case.

 

7. Decision

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, <myspace.tv> be transferred to Complainant.

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Alan L. Limbury
Sole Panelist

Dated: March 2, 2007.