Administrative panel decision 1d media Limited V. Mohamed Zerouali




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

1D Media Limited v. Mohamed Zerouali

Case No. D2015-1296



1. The Parties

The Complainant is 1D Media Limited of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Demys Limited, United Kingdom.


The Respondent is Mohamed Zerouali of Sidi Kacem, Morocco.


2. The Domain Name and Registrar

The disputed domain name is registered with GoDaddy.com, LLC (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2015. On July 27, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 28, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.


The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 August 10, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2015.
The Center appointed Richard G. Lyon as the sole panelist in this matter on September 7, 2015. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. The Panel has submitted his 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 Panel finds the following facts based upon evidence submitted by the Complainant.


The Complainant is the commercial arm of the English-Irish pop band One Direction. This band has enjoyed considerable commercial success since its formation in 2010, performing frequently, selling many records and related fan merchandise, and receiving several industry awards. The Complainant holds trademarks for ONE DIRECTION duly registered in the United States of America (2014) and the European Union (2012).
The Respondent registered the disputed domain name in May 2015. The only use to which the disputed domain name has been put – as shown by screenshots annexed to the Complaint and as verified by the Panel – is a page of pay-per-click hyperlinks to the Complainant, its performers, or its hit songs.



5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to its ONE DIRECTION marks; that the Respondent lacks rights or a legitimate interests in the phrase “one direction”; and that the Respondent registered and has used the disputed domain name in bad faith.



B. Respondent

The Respondent did not reply to the Complainant’s contentions.




6. Discussion and Findings

That this is a default case does not alone generate a ruling in the Complainant’s favor. Under the Policy, unlike much civil litigation, a default does not constitute an admission of any matter pleaded in the Complaint. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.6. Even in a default case “[t]he Policy requires the Complainant to prove each of the three elements. Policy, paragraph 4.” Western Research 3000, Inc. v. NEP Products, Inc. WIPO Case No. D2004-0755, emphasis in original. The Complainant bears the burden of proof to demonstrate by a preponderance of the evidence that each element of paragraph 4(a) of the Policy has been satisfied.



A. Identical or Confusingly Similar

A simple comparison between the disputed domain name and the Complainant’s registered trademarks demonstrates that the Complainant has carried its burden of proof under Policy paragraph 4(a)(i). The disputed domain name is identical to the Complainant’s registered marks when considering only the part of the disputed domain name to the left of the generic Top-Level Domain (gTLD). Ordinarily the gTLD is ignored in the comparison, see WIPO Overview 2.0, paragraph 1.2.




B. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy requires the Complainant to prove a negative. As the Complainant contends, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii)”.

Here the Complainant has demonstrated that it has not licensed or otherwise authorized the Respondent to use its marks and that the Respondent has never been commonly known by the phrase “one direction”, thus making out its prima facie case. Only one possible counter appears from the record – that “one direction” is an everyday phrase to which anyone is entitled. To use the word selected by many respondents that have invoked this as a defense in other cases, the phrase is “descriptive”.


The Complainant contends “that the term ONE DIRECTION has no sensible or reasonable meaning that does not relate to the Complainant or its activities.” That is plainly not the case. This Panel can readily conceive of many uses of the phrase in its descriptive sense to promote (for example) traffic solutions, general problem solving, or religion. The Respondent however has not used the disputed domain name in its descriptive sense; rather all apparent use has sought to take advantage of the renown of the Complainant’s marks. Such use is not bona fide for purposes of Policy paragraph 4(a)(ii). See, e.g., Apple Inc. v. Andrew Sievright, Domain Source, WIPO Case No. D2010-1916, involving (“What makes Respondent’s conduct obvious cybersquatting is the similarity of the disputed domain name to the APPLE mark combined with competitive use, sometimes called ‘targeting’ Complainant and its marks.”)(emphasis in original).
The Complainant has carried its burden of proof under this Policy head.

C. Registered and Used in Bad Faith.

For similar reasons the Complainant has demonstrated bad faith in both registration and use of the disputed domain name. Similarity of the disputed domain name and marks and the content of the website at the disputed domain name establish the Respondent’s knowledge of the Complainant and its marks and an obvious intent to benefit from the marks’ renown at the time of registration. Under this Policy head as well the Respondent’s choice of the “.videos” gTLD reinforces the Panel’s inference from the evidence that such was the Respondent’s intention in registering the disputed domain name.



7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.



Richard G. Lyon

Sole Panelist



Date: September 21, 2015



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