UDRP against domain raises PPC issue once again :Domain News

Fusion.TV : UDRP against domain raises PPC issue once again

UDRP has been denied.

The domain Fusion.TV, a parked domain registered in 2010, was challenged in a UDRP.

Fusion Media Network LLC is the Complainant, alleging that their mark for FUSION TV and FUSION RADIO gives them exclusive rights to these keywords.

Complainant, operates a multimedia platform that provides news, information, and social commentary to a young, diverse audience across language and cultural divides.

The domain is being offered on Sedo for 50,000 EUR.

The Respondent’s attorney fired back a salvo of counter-arguments:

• Complainant uses false or misleading statements concerning its trademark rights.
• Registration of domain names containing common words is permissible on a first-come, first-served basis.
• The disputed domain name comprised the generic word Fusion, word widely used in the United States of America and included in 1,725 trademark applications or registrations.
• Complainant relies on the alleged date of first use in commerce of the FUSION RADIO and FUSION TV marks (2003), rather than the registration date; the latter being the appropriate date to consider when determining rights under the Policy.
• Respondent’s registration of the disputed domain name on June 15, 2010 predates Complainant’s trademark rights.
• Complainant fails to provide evidence of secondary meaning in the marks in order to show common law rights.
• Complainant’s use of the marks since 2003 has not been continuous.
• Complainant has not established a prima facie case showing Respondent lacks rights or legitimate interests in «fusion.tv».
• Respondent’s use of a generic domain name for the purposes of redirecting visitors to a different site can be legitimate use.
• Complainant’s allegation that Respondent’s operation of a pay-per-click website is not a bona fide use of the website is false.
• Respondent has not registered and used «fusion.tv» in bad faith.
• Respondent’s registration of the disputed domain name in 2010 predates Complainant’s filing of the marks in 2012 and 2013, making it impossible for Respondent to have had knowledge of Complainant’s rights when it registered the domain name.
• Respondent’s use of the disputed domain name to operate a pay-per-click website does not demonstrate bad faith, due to Respondent’s lack of knowledge of Complainant’s marks.

The National Arbitration Forum panelist stated that the two marks owned by the Complainant are three and seven years after Fusion.tv was registered:

• Registration of FUSION RADIO since May 21, 2013 before the USPTO (United States Patent and Trademark Office Registration No. 4,337,211).

• Registration of FUSION TV since January 31, 2017 before the USPTO (United States Patent and Trademark Office Registration No. 5,130,987).

Thus, the panelist, Fernando Triana, found no bad faith in the registration of Fusion.tv, based on the following:

Furthermore, in view of the fact that the domain name was registered before the trademarks, Complainant did not provide evidence that (i) the domain name was acquired by Respondent to prevent Complainant from reflecting its trademark in the disputed domain name, since the domain name registration was prior to the trademark registration; or (ii) Respondent registered the disputed domain name primarily for the purpose of disrupting Complainant’s business; or (iii) Respondent acquired the disputed domain name to attract, for commercial gain, Internet users, by creating a likelihood of confusion with Complainant’s trademarks, since the disputed domain name registration was prior to the trademarks registration

For the full text of the decision, click here.

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