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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Endemol Nederland B.V. v. Ashley Trading Services Limited

Case No. D2007-0194

 

1. The Parties

The Complainant is Endemol Nederland B.V., Aalsmeer, Netherlands, represented by Melbourne IT Corporate Brand Services AB, Sweden.

The Respondent is Ashley Trading Services Limited, British Virgin Islands, United Kingdom of Great Britain and Northern Ireland, represented by Bettinger Schneider Schramm Patent und Rechtsanwдlte, Germany.

2. The Domain Name and Registrar

The disputed Domain Name <bigbrother.com> is registered with Network Solutions, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 9, 2007. On February 13, 2007, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the Domain Name at issue. On February 13, 2007, Network Solutions, LLC 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 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 February 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 13, 2007. The Response was filed with the Center on March 13, 2007.

The Center appointed Luca Barbero as the sole panelist in this matter on March 20, 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.

On April 4, 2007 the Panel extended the decision date to April 11, 2007.

 

4. Factual Background

The Complainant is the owner of trademark registrations BIG BROTHER in word and/or device in over thirty-five countries worldwide.

The Respondent registered the Domain Name <bigbrother.com> on October 22, 2004.

 

5. Parties’ Contentions

A. Complainant

The Complainant is a television production company based in the Netherlands. The Complainant belongs to a group structure which has affiliates throughout 24 countries worldwide and the Endemol group holding company was founded in 1994. The Complainant is the Dutch subsidiary of the Endemol group founded by merger in 2001.

The Complainant points out that the Respondent has been listed as the registrant of the domain only since 2004. The earliest record showing the Respondent as the registrant of the domain name is from October 22, 2004. At that point the domain name resolved to a holding page that allowed a user to register their interest in the site. The holding page contained an image of a professional video camera.

The Complainant indicates that as of at least November 2, 2005, the domain name resolved to a page containing links to the pornographic subscription-based websites “www.bigsister.net” and “www.amateurson.com”. The Complainant notes that the Domain Name <bigbrother.com> shares name servers with the domain name <bigsister.net>, suggesting an association between the two domain names.

The Complainant highlights that the website at “www.bigbrother.com” also contains a link at the top of the front page entitled “Advertising”, indicating that the registrant of the domain name is soliciting advertising for the site.

The Complainant states that the website also has a link to the website of Valo Vilag, which is an unauthorized reproduction of the Big Brother format. The producer and broadcaster in Hungary are currently being sued for amongst others the infringement of Endemol’s copyrights. Similar lawsuits with the same plaintiff and some of the same defendants are in process in the Czech Republic and Slovakia.

A cease-and-desist letter was sent by the Complainant via courier on September 5, 2006, to the Respondent at the address listed in the Whois for the Domain Name. The Complainant advised the Respondent that the unauthorized use of the BIG BROTHER trademark within the Domain Name <bigbrother.com> violated the rights in the trademark BIG BROTHER owned by the Complainant. In the interests of an amicable settlement, the letter sought to resolve the dispute by non-adversarial means and made an offer of US$5,000 for the Domain Name. The Respondent did not respond to this letter.

A further letter reiterating the initial offer was sent by the Complainant by registered post and courier to the Respondent on September 20, 2006. The Complainant did not receive a response to this second letter either.

The Complainant indicates that the television program “Big Brother” was developed and first broadcast in the Netherlands in 1999. Series of “Big Brother” have been then adapted and broadcast in over 37 countries worldwide. The Complainant states that the trademark BIG BROTHER is well-known and enjoys international recognition.

The Complainant contends that the Domain Name <bigbrother.com> is identical to the registered trademarks BIG BROTHER and therefore there is a considerable risk that the public will perceive the Respondent’s Domain Name either as a Domain Name owned by the Complainant or that there is some kind of commercial relation with, or endorsement by the Complainant.

The Complainant highlights that the trademark is being tarnished as the disputed Domain Name <bigbrother.com> is used for a website which includes pornographic links. By using the trademark BIG BROTHER as a part of the Domain Name, the Respondent exploits the goodwill and the image of the Complainant’s trademark, which further may result in dilution and other damage for the Complainant’s trademark.

With reference to rights or legitimate interests in the disputed Domain Name, the Complainant states that there is no connection or co-operation between the Complainant and the Respondent and that the Complainant has neither licensed, nor otherwise authorized the Respondent to use the trademark BIG BROTHER in the Domain Name or in any other procedure or matter.

The Complainant indicates that it has not been able to identify any registered trademarks owned by the Respondent in “Big Brother” at trademark offices within the United Kingdom, United States of America, Australia, New Zealand, Sweden, Norway, Denmark, Germany, France, Benelux or Spain.

The Complainant states that the Respondent has not made use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services, and thus cannot satisfy paragraph 4(c)(i) of the Policy. To the contrary, the Respondent is providing some information on the various “Big Brother” television shows licensed by the Complainant whilst at the same time providing sponsored links to pornographic sites that many users of the site would find offensive, and a further sponsored link to “www.wikipedia.org”.

The Complainant also states that there is no evidence that the Respondent has been commonly known by the Domain Name. The Complainant alleges that the Respondent is not making legitimate non-commercial or fair use of the Domain Name pursuant to paragraph 4(c)(iii) of the Policy. Indeed the Respondent is generating revenues from the sponsored links and has provided an email address for users who have enquiries about advertising on the website.

The Complainant emphasizes that the website clearly has a commercial objective and that it does not contain clear disclaimers stating that it is not endorsed by the Complainant or any of the Complainant’s licensees. Therefore, the Respondent cannot claim legitimate interest on this basis.

The Complainant informs the Panel that three letters were sent to the Respondent by courier and registered post, neither of which were responded to by the Respondent. Therefore, according to the Complainant the Respondent has not asserted any rights to, or legitimate interest in the use of the Complainant’s trademark BIG BROTHER.

With reference to the circumstances evidencing bad faith, the Complainant indicates that paragraph 4(b)(iv) of the Policy applies. The Complainant emphasizes that the Respondent was well aware of the Complainant’s mark when acquiring the Domain Name. The Complainant asserts that the inclusion of a television camera showed intent to implement a site based around the Complainant’s television program and utilizing the Complainant’s trademark BIG BROTHER. Such intent was confirmed by use when the current site appeared.

The Complainant states that no page on the website contains any statement that the website is not affiliated or endorsed by the Complainant or the Complainant’s licensees. Indeed, the front page is headlined “Bigbrother.com All Information About Most Popular TV Reality Show”. Grammatical error aside, this could reasonably be interpreted by someone accessing the website as implying that the site is endorsed by the Complainant, and that the Complainant therefore endorses the use of pornographic sponsored links that are contained on the front page.

The Complainant contends that the link to “Big Brother In the World” and a link to the “official website” of Endemol is not sufficient to identify the website at “www.bigbrother.com” as not being an official site of the Complainant, nor does it avoid an inference that the website is endorsed by the Complainant. Additionally, the Complainant states that no permission was given to the Respondent to provide a link to the Complainant’s website at “www.endemol.com”, nor to any other of its websites (see link ‘Big Brother In The World’). The existence of the links on the website, however, risks to confuse the visitors, giving them the impression that the Respondent is in some way connected to the Complainant, which is obviously not the case.

The Complainant highlights that there is prominent use of the Complainant’s trademark and logo of BIG BROTHER on the front page. Additionally, the Complainant’s name and a description of the Complainant are displayed in a link to a page at the web-site entitled “Endemol”, strengthening the impression that the website is an official site.

The Complainant underlines that the prominence of the link to the pornographic site “www.bigsister.net” and “www.amateurson.com” does great harm to the reputation of the Complainant by suggesting that the Complainant endorses, supports or promotes pornographic activities.

B. Respondent

The Respondent denies the Complainant’s allegations that there is an association between the Respondent and the owner of the domain name <bigsister.net>. The domain name <bigsister.net> is registered in the name of IT Service Consulting AG, Baar, Zurich, Switzerland. The Respondent is a different legal entity which has no connections whatsoever with this company.

The Respondent states that the Complainant’s assertion that the disputed Domain Name shares the name servers with the domain name <bigsister.net> and that this is an indication there is a connection between <bigsisters.net> and the Respondent is clearly false.

The Respondent alleges that there are thousands of domain names which are entered in the same name server because they are hosted with the same Internet Service Provider, but which are owned by different legal entities.

The Respondent emphasizes that the disputed Domain Name is registered in the name servers “DNS.EPMS.CZ” and “DNS.XPROJEKT.CZ”, while the domain name <bigsister.net> is registered into the name servers “master.dnsbs.cz” and “slave.dnsbs.cz”.

The Respondent accepts that the Complaint has a right in the trademark BIG BROTHER and BIG BROTHER & device for numerous classes and that these trademarks are identical to the disputed Domain Name.

With reference to rights or legitimate interests in the disputed domain name, the Respondent states that the contested Domain Name consists of the common term “Big Brother”. “Big Brother” is a fictional character in George Orwell’s novel Nineteen Eighty-Four. The Respondent asserts that in the society which Orwell describes, everybody is under complete surveillance by the authorities, mainly by telescreens and that the term “Big Brother” has developed to a term of common speech with regard to this meaning.

The Respondent also states that the term “Big Brother” is connected with other meanings (such as “Authoritarianism”, “Surveillance” and “Video Surveillance”) and is used by various third parties in connection with all of its meanings.

The Respondent quotes many examples showing the generic character of the term “big brother” such as organizations and company names, publications and song titles. The Respondent contends that the Complainant itself refers to the common meaning of the term “Big Brother”: in its TV-show the candidates are video-monitored 24 hours seven days a week.

The Respondent alleges that it is well accepted under the Policy that the registration of common terms in order to use it in connection with the described contents is a legitimate interest under the Policy, paragraph 4(a)(ii).

The Respondent states that the disputed Domain Name was acquired because of its various descriptive meanings and notes that it is without doubt that Domain Names consisting of generic or descriptive terms are valuable assets in order to market a specific product or company but also in order to receive type-in traffic, which is a form of direct navigation from Internet users entering a descriptive term in the web browser’s address rather than following a hyperlink from another web page, using a browser bookmark, or a search-box search.

The Respondent emphasizes that the term “Big Brother” is searched by many people in the Internet in order to find information on different topics (songs, businesses, publications, organizations). The Respondent is using the disputed Domain Name in connection with a website providing information on “Big Brother”-related topics, inter alia the Complainant’s TV show “Big Brother”, George Orwell’s novel “Nineteen Eighty-Four” and another TV show “Valo Vilag”. All this information is connected to the term “Big Brother” as allegory for surveillance and Respondent does not see any reason that this kind of use of the Domain Name is illegitimate. Visitors looking for information related to the various meanings of the term “Big Brother” will find hyperlinks to other websites which contain the information visitors are looking for. If, in fact, visitors are looking for the Complainant, they will also find a link to the Complainant and will merely have to click on the link to navigate to Complainant’s website.

According to the Respondent, it is evident that such use does not create a likelihood of confusion with Complainant or Complainant’s mark BIG BROTHER and is a bona fide use of the Domain Name within the meaning of paragraph 4(c)(i) of the Policy.

With reference to the circumstances evidencing bad faith, the Respondent contends that there are substantial third parties using the term “Big Brother” to identify their goods and services or with a descriptive meaning. The Respondent quotes numerous company names, organizations, trademarks registered in various countries and song titles.

The Respondent emphasizes that the mere existence of multiple users of “Big Brother” as identifier or in a descriptive way clearly undermines the Complainant’s assertion that the Domain Name was registered to confuse consumers.

The Respondent states that none of the illustrative circumstances of paragraph 4(b) of the Policy, which for purposes of the Policy, paragraph 4(a)(iii), shall be evidence of the registration and use of the Domain Name in bad faith, are present in the current case.

With respect to paragraph 4(b)(i) of the Policy, the Respondent informs the Panel that it received an offer from the Complainant to sell the Domain Name for the amount of US$ 5.000. The Respondent has not replied to this offer as it was not willing to sell the Domain Name to anybody but to use the Domain Name in connection with its generic meaning.

The Respondent states that the Domain Name was not registered in order to prevent the Complainant from reflecting its mark in a corresponding Domain Name. The Respondent alleges that the Domain Name was registered because of its generic content and that it has not engaged in a pattern of registering domain names corresponding to third parties’ trademarks as required in paragraph 4(b)(ii) of the Policy.

The Respondent also contends that the Domain Name was not registered primarily for the purpose of disrupting the business of a competitor, as requested in paragraph 4(b)(iii) of the Policy. The Respondent is not in the TV-producing business and therefore not competing with the Complainant.

The Respondent alleges that the Domain Name has not been used in order to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. The Respondent states that, after the registration of the Domain Name, the disputed Domain Name was first used in connection with a website showing a registration form offering Internet users to subscribe to a newsletter and provide them with information on “Big Brother”-related topics. Currently, the Domain Name is used in order to provide links to online information on “Big Brother”-related topics.

The Respondent contends that it is obvious from the content of the website, that Respondent’s website is not the official website from Complainant’s TV-show “Big Brother”. The Respondent provided links to Complainant’s official website as well as to the official websites of Complainant’s TV-show in different countries. These links were all entitled “Go to official webpage” or “Official Website” which clearly shows that the Respondent is not endorsed by the Complainant.

The Respondent informs the Panel that it has tried dissociating from the Complainant by placing these links to its website – entitled with “Go to official webpage” - and showing Internet users that it is not connected with the Complainant.

The Respondent underlines that the use of the Domain Name was not bad-faith use under the Policy. All information available under “www.bigbrother.com” is connected to the term “Big Brother” as allegory for surveillance and Respondent does not see any reason why this kind of use of the Domain Name is illegitimate. Visitors looking for information related to the various meanings of the term “Big Brother” will find hyperlinks to other websites which contain the information they are looking for. The Respondent does not create a likelihood of confusion with Complainant or Complainant’s mark “Big Brother” at all.

 

6. Discussion and Findings

According to paragraph 15(a) of the Rules: “A panel shall decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) that the Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has provided the Panel with evidence of ownership of trademark registrations consisting of the word BIG BROTHER and/or in association with a figurative element in over thirty-five countries of the world.

In comparing the Complainant’s marks to the Domain Name with reference to <bigbrother.com> the well established principle applies that the suffixes, including the generic top level domains, must be excluded from consideration as being merely a functional component of the Domain Name. See Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429 (the specific 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); Chevy Chase Bank, F.S.B. v. Peter Ojo, WIPO Case No. D2000-1770 (the accused Domain Name <chevychasebank.org> is legally identical to Complainant’s trade name CHEVY CHASE BANK”) and Ferrari S.p.A. v. Allen Ginsberg, WIPO Case No. D2002-0033 (the Domain Name <maserati.org> is not only confusingly similar to, but indeed practically identical with, the registered trademark MASERATI, notwithstanding the added gTLD .org).

Furthermore, the Respondent has expressly acknowledged in the Response that “the Complaint has a right in the trademark “Big Brother” and “Big Brother” & device for numerous classes and that these trademarks are identical to the disputed domain name”.

The Panel finds that the Complainant has therefore proven that the disputed Domain Name is identical to the trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant must make a prima facie showing that the Respondent has no rights or legitimate interests in respect of the disputed Domain Name. The Respondent may establish a right or legitimate interest in the disputed Domain Name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:

(a) that it has made 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 prior to the dispute; or

(b) that it is commonly known by the Domain Name, even if it has not acquired any trademark rights; or

(c) that it intends to make a legitimate, non-commercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.

The Respondent, in the opening statement of the Response, denies the Complainant’s allegations that there is an association between the Respondent and the owner of the domain name <bigsister.net>. Furthermore, the Respondent disputes the Complainant’s assertion that the disputed Domain Name shares name servers with the domain name <bigsister.net> and that this is an indication there is a connection between <bigsisters.net> and the Respondent, indicating that the disputed Domain Name is at present “registered in the servers “DNS.EPMS.CZ” and “DNS.XPROJEKT.CZ”, while the domain name <bigsister.net> is registered in the name servers “master.dnsbs.cz” and “slave.dnsbs.cz”.

In the documents provided to the Panel though (Annex 11 to the Complaint) showing the WHOIS information of the domain name <bigsister.net> at the time of filing of the Complaint two of the name servers indicated are “DNS.EPMS.CZ” and “DNS.XPROJECT.CZ”. Therefore, at the time of the filing of the Complaint, it appears that two out of three name servers of the domain name <bigsister.net> in fact were coinciding with the ones indicated by the Respondent as present name servers for <bigbrother.com>.

While, as stated by the Respondent, there are “thousands of domain names which are entered in the same name server because they are hosted with the same Internet Service Provider but which are owned by different legal entities”, the Panel notes that the same name servers - which are based on Czech Republic (.cz) top level domain names – and provider have been used by the domain name holder of <bigbrother.com>, which is indicated to be based in the British Virgin Islands.

Apart from the selection of name servers by two companies apparently headquartered in different areas of the world (and in any event the current ones of <bigsisters.net> also are still based on “.cz” domain names), the Panel notes that the link to the website “www.bigsisters.net” is inserted in the second space in the home page published on the website currently on line at “www.bigbrother.com” immediately after the section describing the activities of the Complainant. This section describing the content of the website at “www.bigsisters.net” is the only one highlighted in yellow background amongst the other six quoted on the home page at “www.bigbrother.com” which have a white background and the link to “www.bigsisters.net” is also advertised amongst the “sponsored links” on the right of the web page. Moreover, the connection with the location of the name servers of both <bigbrother.com> and <bigsisters.net> is also established by the very explanation of the sponsored links of “www.bigsisters.net” which states: “Live cams from online brothel in Prague” and by the link itself on the home page at “www.bigbrother.com” under the title “Erotic reality show from brother in Prague”.

The Panel finds that the above listed circumstances linking the two domain names do not support the Respondent’s assertion that it acquired the disputed Domain Name because of its various “descriptive meanings”.

Furthermore, while in the Response reference is made to several titles of songs of famous authors such as David Bowie and Stevie Wonder, a consistent number of other companies and additional trademark registrations consisting of or including “Big Brother”, none of these issues - but one link about George Orwell - is dealt with on the website of the Respondent claiming to provide “information on ‘Big Brother’ related topics”.

To the contrary, at the top of the published home page it is clearly stated in capital letters “Big Brother.com All information about most popular TV reality show”. The Respondent consequently is intentionally setting as main focus of the website the show business of the Complainant. As highlighted in details in the Complaint and referred above, the Respondent is also reproducing the Complainant’s registered trademarks and the company producing the show. As mentioned above, a particular emphasis is then used to advertise the pornographic subscription-based website published at “www.bigsisters.net » while no clear disclaimer about the absence of any relationship between the Complainant and the Respondent was adopted on the home page.

The Panel finds that such a use of the disputed Domain Name cannot be considered to be in connection with a bona fide offering of goods or services prior to the dispute or a legitimate, non-commercial or fair use without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.

There is no relation between the Respondent and the Complainant and the Respondent is not a licensee of the Complainant, nor – as highlighted in the Complaint - has the Respondent otherwise obtained an authorization to use the Complainant’s trademarks and name. See, e.g., Nilfisk-Advance A/S v. Leong Tak Lang, WIPO Case No. D2000-1299, concluding that the respondent had no rights or legitimate interest in <nilfisk.net> because the respondent is not an authorized agent or licensee of complainant, Guerlain S.A. v. SL Blancel Web, WIPO Case No. D2000-1191, noting that lack of authorization or license to use complainant’s marks contributed to a finding that complainant established prima facie evidence that respondent had no legitimate rights in <missguerlain.com>.

In light of the foregoing, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed Domain Name, in accordance with paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the purpose of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the Domain Name in bad faith:

(i) circumstances indicating that the holder has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the Domain Name; or

(ii) the holder has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding Domain Name, provided that the holder has engaged in a pattern of such conduct; or

(iii) the holder has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the Domain Name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’ s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s website or location.

With reference to the issue of bad faith at the time of the registration - in light inter alia of the fact that the contested Domain Name and the Complaint’s trademark are identical and that the Respondent acknowledged the prior registration of the trademark BIG BROTHER, which has obtained considerable fame - the Panel concludes that the Respondent was well aware of the existence of the trademark BIG BROTHER at the time of registration of <bigbrother.com> in the name of the current domain name holder.

In accordance with a number of prior decisions issued under the Policy, the Panel agrees that actual knowledge of a complainant’s trademark at the time of the registration of a disputed domain name may support an inference of bad faith. See, i.a. Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226; Societй des Produits Nestlй, S.A. v. Whois ID Theft Protection, WIPO Case No. D2006-1154.

Examining the content of the website, the Panel finds that the link to “Big Brother In the World” and a link to the “official website” of Endemol - which is only visible once the Internet user has used the ENDEMOL link on the home page - are not sufficient to avoid, and indeed may support an inference that the website is endorsed by the Complainant.

The lack of any clear statement on the home page that the website is not affiliated with the Complainant, the statement in capital letters at the top of the home page “Big Brother.com”. All Information about most popular TV reality show”, the presence of an “advertising” link in the third line of the home page offering to publish ads and promotion on the website at “www.bigbrother.com”, the relevant use of the Complainant’s trademark and logo BIG BROTHER and Endemol in three out of seven links on the home page, the prominent positioning of a link to a subscription-based pornographic website published on the Domain Name <bigsisters.net> which was sharing the same name servers as the disputed domain name (and both based in the same country as the alleged brothel advertised by the link “www.bigsisters.net”), the existence of a sponsored link section in the home page with a link also to “www.amateurson.com” a “Big Amateur porn portal with free photos”, are to be considered as concurring circumstances evidencing the registration and use of the Domain Name in bad faith.

With reference in particular to the links to the pornographic websites, the Panel makes a finding similar to that in BellSouth Intellectual Property Corporation v. Peter Carrington, Party Night Inc., WIPO Case No. D2003-0308: “It is likely that such diversion of queries, to the <amaturevideos.nl> and <hanky-panky-college.com> sites, generates revenues for the Respondent, either through advertising or through commissions. Given the contents of the ultimate websites, it is unlikely that the re-direction was motivated by any purpose other than “commercial” in the meaning of paragraph 4(b)(iv) of the Policy.”

The Panel finds paragraph 4(b)(iv) of the Policy applicable in this case since the Respondent has attempted to attract Internet users to a website for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s services.

In view of the above, the Panel finds that the Respondent has registered and used the Domain Name in bad faith, in accordance with paragraph 4(a)(iii) of the Policy.

 

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 <bigbrother.com> be transferred to the Complainant.

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Luca Barbero
Sole Panelist

Dated: April 11, 2007