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NOMBRES DE DOMINIO – Tribunal Arbitral de la OMPI – _ushuaiavoyages

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NOMBRES DE DOMINIO – Tribunal Arbitral de la OMPI – (ushuaiavoyages.com).
El Tribunal Arbitral de la OMPI rechazó un reclamo al considerar que, aunque el nombre de
dominio puede llegar a ser confundible con la marca del demandante, éste no logró demostrar
que el demandado careciera de derecho o de interés legítimo sobre aquel nombre de dominio,
ni que hubiera registrado o utilizado el mismo de mala fe.

WIPO Arbitration and Mediation Center
                             ADMINISTRATIVE PANEL DECISION
                          Télévision Française 1 (TF1) v. Khaled Bitat
                                     Case No. D2007-0137

1. The Parties
The Complainant is Télévision Française 1 (TF1), France, represented by Inlex IP Expertise,
France.
The Respondent is Khaled Bitat, United States of America, represented by Sparks Willson
Borges Brandt & Johnson, PC, United States of America.

2. The Domain Name and Registrar
The disputed domain name (ushuaiavoyages.com) is registered with Go Daddy Software.

3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on
January 31, 2007. On February 2, 2007, the Center transmitted by email to Go Daddy Software
a request for registrar verification in connection with the domain name at issue. On
February 2, 2007, Go Daddy Software 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 6, 2007. In
accordance with the Rules, paragraph 5(a), the due date for Response was February 26, 2007.
The Response was filed with the Center on February 22, 2007.
The Center appointed Alan L. Limbury as the sole panelist in this matter on March 7, 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 city of Ushuaia is the capital of the Argentine province of Tierra del Fuego. It is the most
southerly city in the world.
The Complainant broadcasts an international television programme under the name USHUAIA.
It hold numerous registered French and International trademarks for the word USHUAIA and for
stylized forms of that word in respect of virtually all the goods and services in a large number of
classes, including French trademarks Nos.1525551 registered on April 21, 1989, covering,
amongst many goods and services, “reservation of hotel rooms for travellers”; 99782334
registered on March 22, 1999, covering, amongst many goods and services, “arranging of tours”
(in French “organisation de voyages”) and 033260299, registered on December 1, 2003,
covering, amongst many goods and services “transport of people or goods; arranging of tours,
cruises; escorting of travellers; air transport; tourist offices (except hotel reservations, boarding
houses)” and “booking of seats (transport).” The Complainant‟s international trademark No.
845073, registered on June 1, 2004, in respect of numerous goods and services including
“arranging of tours, of cruises; escorting of travelers‟, comprises the stylized word USHUAIA
with the letters “shua” being placed in front of a small circle, reminiscent of a setting sun.



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The Complainant is also the registrant of several domain names incorporating the word
ushuaia, including (ushuaia.fr), (ushuaia.com), (ushuaia.us), (ushuaiamagazine.com) and
(ushuaiat.com).
The Respondent registered the disputed domain name (ushuaiavoyages.com) on
June 15, 2005. Prior to June 15, 2006, the domain name resolved to a website in the French
language, operated by „Ushuaia Voyages‟ of Hydra, Algeria, and which, under a depiction of a
circle surrounded by curves (implying movement) behind the first letter “U” in USHUAIA,
followed by the smaller word VOYAGES, offered holiday travel agency services to various
destinations for “ceux qui, comme nous, ont le goût du Voyage et de l‟evasion” and offered
experts in different kinds of holidays, including at the beach, at the snow or at the other end of
the world (“à l‟autre bout du monde”).
In response to a cease and desist letter from the Complainant dated June 15, 2006, addressed
to „Ushuaia Voyages‟ in Algeria, that use of the website ceased and the enterprise changed its
name. In October, 2006, the Complainant‟s counsel communicated with the Respondent,
seeking transfer to the Complainant of the disputed domain name. The Respondent, writing as
CEO of Landmarksoft Corp. of Colorado Springs, and after having taken legal advice,
contended that the Complainant would not have an easy time having a claim upheld but
indicated interest in voluntarily turning over the domain name. In response to an offer of “$500
maximum” from the Complainant, the Respondent, on November 28, 2006, stated that he had
incurred considerable legal expenses and further expenses in appraising the domain name and
that “its value is considerably higher than your offer. I am willing to turn over the ownership of
the domain name to your client for a sum of ten thousand Euros”.

5. Parties’ Contentions

A. Complainant
The Complainant says the disputed domain name is identical or confusingly similar to its
USHUAIA trademarks, the addition of the term “voyages” being totally irrelevant and having no
impact on the overall impression of the dominant part USHUAIA. The extension “.com” is
likewise irrelevant.
The Respondent has no rights or legitimate interests in the disputed domain name, since he is
not known under the USHUAIA or USHUAIA VOYAGES trademarks and has no registered
marks. The Complainant has not licensed him to use the USHUAIA marks and has no
relationship with him. The Respondent used the domain name to redirect users to the French
language website of a travel agency which displayed a counterfeit of the USHUAIA trademark
and its circle logo. This was done with knowledge that the Complainant‟s well known and
internationally publicized USHUAIA trademarks covered “tourist offices” and “arranging of
tours”. The suspension of the website after the first cease and desist letter demonstrates that
the Complainant‟s action was well founded; that the registrant has no rights; that the use was
not bona fide and that the Respondent knew of the Complainant and of its USHUAIA marks.
The Respondent registered and has used the domain name in bad faith, since the
Complainant‟s distinctive marks and its websites are well known in France and throughout the
world. The Respondent could not have ignored their existence, especially since he is a French
speaking person. Prior to the first cease and desist letter, the Respondent was renting the
disputed domain name to a fraudulent, counterfeiting website and was therefore intentionally
diverting Internet users for his own commercial gain by creating a likelihood of confusion with
respect to the source, sponsorship, affiliation or endorsement of the website. Accordingly the
domain name was registered primarily for the purpose of disrupting the business of the
Complainant and to attract Internet users to a competitor website.
After the second cease and desist letter the redirection of the disputed domain name ceased
and it is still inactive. To refuse transfer yet to engage in passive use in these circumstances is
cybersquatting behaviour amounting to bad faith use: Telstra Corporation v. Nuclear
Marshmallows, WIPO Case No. D2000-0003. It is not possible to conceive of any plausible or
contemplated active use that would not be illegitimate: Thomas Cook UK Limited v. CHS Tech
Services Limited, WIPO Case No. D2002-0882.
The Respondent‟s request for 10,000 Euros is further evidence of bad faith: Elle Bleu, EBI v.
Alfred Mitchell Inc., WIPO Case No. D2003-0811
B. Respondent



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The Respondent says the Complainant has failed to discharge its burden of proof as to all three
elements it must establish.
In a sworn affidavit, the Respondent says he is the sole owner and President of LandmarkSoft
Corp., which designs and develops websites for clients and registers domain names for their
use. On June 15, 2005, he registered the disputed domain name following a request to do so
from a client, Mr. Benmansour of Repere Communications. He developed the website in
consultation with the client and it went live in June 2005. At the time of registration, the
Respondent was unaware of the existence of the Complainant‟s registered trademarks for
USHUAIA and assumed that his client had chosen it because it is the name of a tourist
destination. He became aware of those marks only when he received the [second] cease and
desist letter. He believes Mr. Benmansour decided to abandon his planned business in order to
avoid potentially lengthy and costly litigation with the Complainant.
Annexed to the affidavit is the Respondent‟s email correspondence with the client, including an
email dated June 26, 2006, asking, without elaboration, that the disputed domain name be
taken off-line and re-directed to Landmarksoft as a sub-domain.
The Respondent contends that, under the law of many countries, the Complainant‟s mark is
either unregistrable or limited in strength because it is merely a geographic place name.
Because of the relative weakness of the mark, even small differences between the domain
name and the mark are relevant to the question of whether it is confusingly similar. The addition
of “voyages” is sufficient to remove it from the realm of confusingly similar: Brisbane City
Council v. Warren Bolton Consulting Pty Ltd., WIPO Case No. D2001-0047. The font used on
the website created by the Respondent also acts as a distinguishing characteristic and is likely
to dispel any initial consumer confusion.
At the time of registration, the Respondent had a legitimate business reason to register the
disputed domain name. The present lack of use is the result of the Complainant‟s successful
demands against Mr. Benmansour, whose decision not to enter a legal battle with the
Complainant cannot now be used as evidence of the Respondent‟s lack of legitimate interest at
the time of registration.
The website content is evidence of a bona fide commercial purpose at the time the domain
name was registered because the website is clearly not designed to misdirect or mislead
consumers.
As to bad faith, the Respondent says the Complainant relies on (i) its mark being so famous that
the Respondent must have heard of it; (ii) Mr. Benmansour‟s election to shut down the website;
and (iii) the Respondent‟s passive holding and offers to sell.
As to (i), the Respondent says that the Complainant overstates the fame of its mark. Its earliest
registration was after the Respondent left Algeria and became a resident of the United States of
America. It is therefore understandable that the Respondent had not heard of the Complainant‟s
USHUAIA mark or any of its related programming until he received the cease and desist letter.
The Complainant is not the only holder of a registered mark for USHUAIA nor of domain names
containing that word. The city of Ushuaia in Tierra del Fuego is a popular tourist destination.
The Respondent suggests it is more likely that the registration of the disputed domain name
was to attract consumers who were interested in unusual tourist destinations rather than a bad
faith attempt to create confusion among consumers familiar with the Complainant‟s mark.
The Respondent refers to the various decisions regarding the application of the Policy to
geographical indications incorporated in domain names and annexes a copy of the Report of
the Second WIPO Internet Domain Name Process of September 3, 2001.
As to (ii), the Respondent says Mr. Benmansour‟s decision to shut down the website rather than
fight the Complainant is not evidence of bad faith and that the two websites are too dissimilar for
the purpose to have been to disrupt the Complainant‟s business.
As to (iii), the Respondent says that passive holding is not, in this case, evidence of bad faith. In
stating that it is not possible to conceive of any plausible actual or contemplated active use of
the domain name by the Respondent which would not be illegitimate, the Complainant suffers
from an acute lack of imagination. The Respondent‟s client had the expectation of offering travel
services and the Respondent had the completely legitimate purpose of fulfilling its contractual
obligations with Repere Communications and Mr. Benmansour to design and launch a website.
Using the name of a popular tourist destination is not so unusual in that context and the mere
use of Ushuaia Voyages for that purpose is not evidence of bad faith. Once Mr. Benmansour



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decided to abandon his business plans in order to avoid a costly legal battle with the
Complainant, the Respondent was left owning the domain name. His failure to turn it over to the
first person to make a demand is not evidence of bad faith.
The Respondent made an offer to sell only in response to the Complainant‟s offer to pay his
costs. Not every offer to sell a disputed domain name should be considered evidence of bad
faith: The Nasdaq Stock Market, Inc. v. Green Angel, WIPO Case No. D2001-1010.

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, the 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 the Complainant has rights; and
ii. the 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.
While geographical names are not protected as such under the Policy, they may nevertheless
qualify for protection under the Policy as trademarks if registered as such or if shown by
evidence of their use to have become distinctive of the goods or services of a particular trader.
In this respect they may be protected as trademarks in the same way as generic words shown
to have become distinctive. It is therefore a matter of evidence in each case as to whether a
complainant has proved that the geographical name functions as a trademark: see Mt. Eliza
Graduate School of Business and Government Ltd. v. Rom Graphics, eResolution Case No.
AF-00831; Daydream Island Resort Investments Pty Ltd. v. Alessandro Sorbello, eResolution
Case No. AF-0586 and Stadt Heidelberg v. Media Factory, WIPO Case No. D2001-1500.
The fact that a trademark may also be a geographical indication means that the trademark
owner cannot claim exclusive use of the mark: see Sorel Corporation v. Domaine Sales Ltd,
NAF Case No. FA0102000096674. It is therefore a matter for evidence in each case as to
whether the elements of illegitimacy and bad faith are established: see Maui Land and
Pineapple Co., Inc. v. Kapalua Land Co., NAF Case No. FA0008000095544; Bondy Way
Development Corporation and Ashburn Village Development Corporation v. Re/Max Premier,
WIPO Case No. D2000-0322; Oshawa Centre Holdings Inc. v. M. Bharwani, eResolution Case
No. AF-0820; MAHA Maschinenbau Haldenweg GmbH & Co. KG v. Deepak Rajani, WIPO
Case No. D2000-1816 and Sorel (supra). In this regard also, the Policy applies to geographical
indications that function as trademarks in like manner as it applies to generic words that function
as trademarks.

A. Identical or Confusingly Similar
The Complainant clearly has rights in numerous registrations of the trademark USHUAIA.
Many cases have established that “essential” or “virtual” identity is sufficient for the purposes of
the Policy: The Stanley Works and Stanley Logistics Inc. v. Camp Creek Co., Inc., WIPO Case
No. D2000-0113, Nokia Corporation v. Nokiagirls.com a.k.a IBCC, WIPO Case No. D2000-
0102; America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Disney Enterprises,
Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol, WIPO Case No. D2001-0489;
Komatsu Ltd. and Komatsu America International Company v. RKWeb Ltd., WIPO Case No.
D2000-0995; America Online, Inc. v. Andy Hind, WIPO Case No. D2001-0642 and The Toronto-
Dominion Bank v. Boris Karpachev, WIPO Case No. D2000-1571.
Disregarding the inconsequential extension “.com”, the Panel finds that the disputed domain
name (ushuaiavoyages.com) is not identical to the trademark USHUAIA.
The test of confusing similarity under the Policy is confined to a comparison of the disputed
domain name and the trademark alone, independent of the other marketing and use factors,
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such as the “Sleekcraft factors” – AMF Inc. v. Sleekcraft Boats, 599 F.2d 341,346 (9 Cir.
1979), usually considered in trademark infringement or unfair competition cases. See BWT
Brands, Inc. and British American Tobacco (Brands), Inc v. NABR, WIPO Case No.D2001-1480;
Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505; Wal-
Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662; Koninklijke
Philips Electronics N.V. v. In Seo Kim, WIPO Case No. D2001-1195; Energy Source Inc. v. Your



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Energy Source, NAF Case No. FA 96364; Vivendi Universal v. Mr. Jay David Sallen and
GO247.COM, Inc., WIPO Case No.D2001-1121, and the cases there cited.
Not without some hesitation given the mark at issue, the Panel finds the disputed domain name
to be confusingly similar to the Complainant‟s USHUAIA trademark. The Complainant has
established this element of its case.


B. Rights or Legitimate Interests
Ushuaia is a popular tourist destination. The disputed domain name (ushuaiavoyages.com)
conveys the descriptive idea of tourism to Ushuaia. The Complainant‟s USHUAIA mark is
relatively weak since the word Ushuaia, being a geographical place name, cannot uniquely
distinguish the goods or services of the Complainant. Any use of that word in a domain name
must be considered in light of the nature of the activity conducted under the domain name and
the motivation of the registrant: Report of the Second WIPO Internet Domain Name Process,
September 3, 2001, paragraph 260.
Nevertheless, the Respondent is not known by the disputed domain name and has not been
authorized by the Complainant to use its USHUAIA mark nor to register the disputed domain
name. These circumstances are sufficient to constitute a prima facie showing by Complainant of
absence of rights or legitimate interest in the disputed domain name on the part of the
Respondent, to whom the evidentiary burden therefore shifts to show by concrete evidence that
he does have rights or legitimate interests in that domain name: Do The Hustle, LLC v. Tropic
Web, WIPO Case No. D2000-0624; Cassava Enterprises Limited, Cassava Enterprises
(Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753.
Paragraph 4(c) of the Policy sets out, without limitation, circumstances which, if proved,
establish the registrant‟s rights or legitimate interests to the disputed domain name. The
Respondent relies on the circumstances specified in sub-paragraph 4(c)(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;”
Even perfunctory preparations have been held to suffice for this purpose: Shirmax Retail Ltd. v.
CES Marketing Group, Inc., eResolution Case No.AF-0104; Lumena s-ka so.o. v. Express
Ventures Ltd., NAF Case No. FA00030000094375 and Royal Bank of Canada v. Xross,
eResolution Case No.AF-0133. On the other hand, use which intentionally trades on the fame of
another cannot constitute a „bona fide‟ offering of goods or services; Madonna Ciccone, p/k/a
Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847.
Despite the Complainant‟s assertions, there is no evidence that the Respondent was aware of
the Complainant‟s USHUAIA mark when he registered the disputed domain name, in response
to his client‟s request. Further, the Panel does not accept that the depiction on the
Respondent‟s client‟s website (developed by the Respondent) of a circle in association with the
word Ushuaia amounted to a counterfeit of the Complainant‟s mark and logo, and does not
accept the implication that the former was copied from the latter, with knowledge thereof.
The Panel accepts the Respondent‟s sworn evidence that he was at the time of registration of
the disputed domain name unaware of the existence of the Complainant‟s registered
trademarks for USHUAIA and assumed that his client had chosen it because it is the name of a
tourist destination. Under these circumstances and having regard to the fact that Ushuaia is a
popular tourist destination, the Panel finds that the registration of the disputed domain name by
the Respondent and the development for his client of a tourism-related website offering holidays
“at the other end of the world” and reached via the domain name constituted use of the domain
name, prior to notice of this dispute, in connection with a bona fide offering of services.
It follows that the Complainant has failed to establish this element of its case.

C. Registered and Used in Bad Faith
The Panel has already found that the Respondent was unaware of the Complainant‟s USHUAIA
marks when he registered the disputed domain name. Mr. Benmansour‟s decision to abandon
the website upon his receipt of the first cease and desist letter is not evidence that his activities
and, by extension, those of the Respondent, were in bad faith. Given the events since
registration, the Respondent‟s failure to use the disputed domain name since Mr. Benmansour
ceased using it does not constitute bad faith use.



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The mere offering of a domain name for sale for more than the out-of pocket costs directly
related to the domain name does not constitute evidence of bad faith registration and use within
paragraph 4(b)(i) of the Policy. That sub-paragraph of the Policy requires a showing that the
respondent registered or acquired the disputed domain name primarily for the purpose of selling
it to the complainant or to a competitor of the complainant for a price exceeding those costs:
The World Phone Company (Pty) Ltd v. Telaccount Inc., WIPO Case No. D2000-1163.
Here the evidence establishes that the primary purpose in registering the disputed domain
name was to establish a tourism-related website for the Respondent‟s customer. Even if the
offer in November 2006 to sell the disputed domain name for 10,000 Euros were use in bad
faith, that would be insufficient to displace the evidence of good faith registration in June 2005:
Substance Abuse Management, Inc. v. Screen Actors Modesl [sic] International, Inc. (SAMI),
WIPO Case No. D2001-0782; Teradyne Inc.Teradyne, Inc. [sic] v. 4tel Technology, WIPO Case
No. D2000-0026; Telaxis Communications Corp. v. William E. Minkle, WIPO Case No. D2000-
0005 and Yoomedia Dating Limited v. Cynthia Newcomer / Dateline BBS, WIPO Case No.
D2004-1085.
The Complainant has failed to establish this element of its case.

7. Decision
For all the foregoing reasons, the Complaint is denied.

                                        Alan L. Limbury
                                          Sole Panelist
                                      Date: March 20, 2007




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NOMBRES DE DOMINIO – Tribunal Arbitral de la OMPI – <bigbrother.com>.
El Tribunal Arbitral de la OMPI hizo lugar al reclamo al considerar que el nombre de dominio es
idéntico a la marca del demandante y que la prueba aportada por las partes evidencia que el
demandado no tiene derecho o interés legítimo sobre aquel nombre de dominio y que registró y
utiliza el mismo de mala fe.




                    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
Rechtsanwälte, 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.


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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”.




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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”.




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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 torights 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.



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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. SeeRollerblade, 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”.




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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”.




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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; Societé des Produits
Nestlé, 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.



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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.

                                          Luca Barbero
                                          Sole Panelist
                                       Dated: April 11, 2007




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