TVBS.com, a domain name registered on April 20, 1998 has been ordered transferred to a trademark holder in a UDRP decision handed down by the Asian Domain Name Dispute Resolution Center (“ADNDRC”).
Some of the language in the decision is troubling as is the failure of the panel to even consider or discuss the legal concept of latches due to the 16 year delay in taking action.
The Complainant is the TVB, Television Broadcasts Limited (listed on the main board of The Stock Exchange of Hong Kong Limited), commonly known as TVB, was established on 19 November 1967 and is the first wireless commercial television station in Hong Kong.
They own the domain name TVB.com which was first registered in 1999.
“Headquarters in Hong Kong, TVB provides round-the-clock entertainment channels and news service to over 7 million Hong Kong viewers and operates an international licensing and distribution business.”
While the Respondents did not submit a formal Response to the Complaint but did sent an email to the panel, which the panel discusses below but did not treat as a response.
Furthermore, the registration of the Disputed Domain Name www.tvbs.com has been changed to a company named “PERFECT PRIVACY, LLC”, which provides domain name holders with a privacy service to conceal the registrant’s real name from the public.
Obviously, the First Respondent tried to use this means to hide its name from being disclosed to the public, which suggests a highly suspect motive. It is not the way a legitimate business would operate.”
In addition, TVB has already obtained the registry of tvbs.com.tw (registered in 1997).
TVB obtained the trademark registrations of TVBS prior to the date of April 20, 1998 which the Respondent registered the domain name tvbs.com
“The Disputed Domain Name does not appear to be in use for any bona fide offering of goods or services or to have been established in anticipation for such use, and there is no indication that the Respondents were known by the name “TVBS” prior to the registration of the domain name.
The Registrar’s 14 November 2014 email to the ADNDRC expressly states: “We confirm that the Uniform Domain Name Dispute Resolution Policy applies to the tvbs.com domain name”. That this is true, and that this Panel has jurisdiction over this dispute, is apparent from the terms of the service agreement found on the Registrar’s public website, which reads (in relevant part):
“12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective after posting of the revised Agreement or change to the service(s) on Network Solutions Websites, or upon notification to you by email or United States mail. You agree to periodically review our Websites, including the current version of this Agreement available on our Websites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your tennination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees. By continuing to use Network Solutions Services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. Weare not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Website of a general informational nature. No employee, contractor, agent or representative of Network Solutions is authorized to alter or amend the terms and conditions of this Agreement.
22. AGREEMENT TO BE BOUND. By applying for a Network Solutions service(s) through our online application process or otherwise, or by using the service(s) provided by Network Solutions under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference”.
That is, upon registering the Disputed Domain Name, the First Respondent became bound by the terms of the (on line) service agreement with the Registrar. Pursuant to that agreement, the First Respondent agreed that the terms of the service agreement would be changed from time to time by the Registrar; that such changes would become binding on the First Respondent upon posting on the Network Solutions Websites; and that the First Respondent’s continuing use of the domain name would evidence the First Respondent’s agreement to be bound by such new or different terms.
Furthermore, the fact that the First Respondent employed the Second Respondent as its agent in relation to the Disputed Domain Name provides no defense. Paragraph 14 of the Registrar’s service agreement provides:
“14. AGENTS. You agree that, if your agent, (e.g., your PrimalY Contact or Account Administrative Contact, Intemet Service Provider, employee) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the domain name dispute policy. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent”.
That is, even assuming that the First Respondent’s lack of awareness or understanding of its obligations under its service agreement with the Registrar resulted from some failure or defalcation on the part of its agent, the Second Respondent, this provides no defense to the First Respondent, who remains bound by the service agreement, including the obligation to be bound by the UDRP, as amended by the Registrar from time to time.
7. Decision
The Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be granted. Accordingly, it is ordered that the <tvbs.com
The trouble with these new ADR companies is that they will want to make a mark so they get more business from complainants ,and thus the more complaints that succeed the more business they can expect. Of course they never get business from Respondents so why should they give an F about whether decisions is fair or not ?.
They don’t.
What I would like to find out perhaps is whether there is some way at all that a challenge could be made against ICANN or WIPO so as to try and reign in these unfair decisions ?
Even in cases of reverse domain name hijacking (RDNH) there are no penalties for complainants. Panelists now operate with little review & relative impunity in pocketing fees. The danger to such functionaries is one day being fingered by the mob – such as “human-flesh search engine” activists (人肉検索 in Chinese rénròu jiǎnsuǒ) where there are real dangers of vigilante attacks (search for the term if unfamiliar). The income from complainants does not seem so good if these ‘judges’ themselves become hunted. Surely the present justice system needs major adjustment before someone becomes tragically or permanently hurt.
Yes that will be something they will hve to fear I am sure. I remember once I “gave” one of my domains to a well known ,erm person rather than ,and anyway he was ok person.
Says , “In addition, TVB has already obtained the registry of tvbs.com.tw (registered in 1997).”
That does not appear to be correct.
check Whois tvbs.com.tw not Television Broadcasts Limited.
take tvbs.com domain for sell to tvbs.com.tw?
bad defense from Respondent, but ridiculous reasoning from the panelist about the use of privacy. it is not the first time a panelist reasons along this line however.
The Respondent would be happy to receive any assistance from US lawyer in jurisdiction of Network Solutions who would be willing to issue legal proceedings on special arrangement basis (they do not have finance to fund litigation unless special basis !).
ANYONE ? Would be good for all domainers if we can stand up against such bad UDRP decisions as will have good effect for future defences etc.
unfortunately now assistance from an attorney requires a federal lawsuit filing in which fees are at least 5X the cost of defending the UDRP which you did not do.
Also jurisdiction to stop a transfer for a UDRP is in the place you live or where your registrar is located, not where the registry is located
@Michael, its not me for the record, but am in indirect touch with the Respondent. Have given them some lawyers details in Taiwan and some pointers what to issue etc so lets see whether he takes that up. Yes agreed maybe either he should have issued proceedings before the UDRP decision (I have learnt that is best way to proceed as then is not a case of trying to get a domain back but more to keep what you have in hand) or at least replying to UDRP . Anyway he is where he is and no changing that.
in this case http://domains.adrforum.com/domains/decisions/102517.htm
same Television Broadcasts Ltd. win the tvbs.net
but they not use it,I think domain just rich man’s toys.
It would be fun to see the owner of TV.com to go after TVB guys …
What a silly and unprecedented decision!
Where is the similarity between TVB and TVBS? This is a terrible case.
TVBS is a well know brand in Taiwan and Hong Kong for many years, owned by TVB. TVBS is the call letter for the satellite channel and the correct website is at http://www.tvbs.com.tw. Privacy or not, the person who registered TVBS.com (if living in Hong Kong, Taiwan, or China) clearly aware the trademarks. It would be like for someone who buy CNNH.com after CNN launches CNNH channel.
Winston
Fair enough but where have they been for the last 16 years
The guys didn’t register the domain a month ago.
If its that important to them you would think they might have noticed it sometime in the last 16 YEARS
I checked with Wikipedia, TVBS was the first non-government owned TV station launched back in 1993. It was a local TV station and being first, it had a lot of political pressure over the years for its programming. Parent company TVB was established in Hong Kong in 1967 under British rule until 1997, which went back to China rule. The management are probably old school and not tech savvy. But I agree with you, 16 years was a long time.
This is BS. Never should have never happened. 16 years. Good grief give me a break.
This should serve as a reminder of where China will lead the us to, when it becomes the most influent country in the world.