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What do you think about this Vevo.xxx decision?

May 31, 2012.xxx, Domaining, Domainnamewire, Policy & Law, vevo.comComments Off on What do you think about this Vevo.xxx decision?

Vevo snags triple xxx domain nam.

Vevo.comVevo.com, a music video site backed by Sony Music Entertainment, Universal Music Group, and Abu Dhabi Media, ust won a UDRP case for the domain name Vevo.xxx.

But I find the facts of the case troubling, because it’s hard to provide any proof that the domain was registered in bad faith.

The domain Vevo.xxx only resolves (or did resolve) to a registrar holding page. How can you prove anything about the registrant’s intent based on that? We’re talking about a domain registered just 6 months ago. Saying that the domain is unused as evidence of bad faith seems like a long shot.

Here are some of Vevo’s contentions that I’m not so sure about:

“Considering that VEVO is an arbitrary, coined term, it is highly improbable that Respondent selected the Infringing Domain Name by coincidence, without an intent to trade off the substantial goodwill Complainant has developed in the VEVO trademark.”

It’s a four character term. It could be used for a number of things.

“Further undermining any possible allegation of good faith by Complainant is the fact that Complainant is in the business of lnternet-based videos, and the .XXX sTLD is reserved for adult-entertainment websites (i.e., adult video websites). It is apparent that Respondent registered the Infringing Domain Name with the intent of profiting from the established association between the VEVO mark and video programming. Consumers would inevitably assume that any adult video website posted by Respondent at the Infringing Domain Name is Complainant’s foray into the adult video field, which would be extremely damaging to Complainant’s reputation and to the VEVO brand.”

That assumes the adult site eventually created at Vevo.xxx had video. But this makes Vevo’s motivation for bringing the case is clear. If only it wasn’t asleep at the wheel when .xxx domains came out.

…Respondent could not conceivably have a legitimate interest in the Infringing Domain Name. Under the Charter Eligibility Dispute Resolution Policy (CEDRP) governing the .xxx sTLD, to be eligible to register any .XXX domain name, Respondent must be a member of the relevant “sponsored community” permitted to register a .XXX domain names, namely one who provides “Adult Online Entertainment” (e.g., pornography), or one who represents or provides services to those provide such entertainment. CEDRP ,-r 2(a) (allowing for transfer of the domain name from Respondent when a .XXX TLD domain name “has not been registered in compliance with the Sponsored Community eligibility criteria….”). Here, there is no evidence that Respondent meets this requirement, which itself provides independent grounds for finding no legitimate interest.

Couldn’t conceivably have a legitimate interest? That’s a bold statement not backed by facts. It’s entirely conceivable that the registrant is in the adult business.

The respondent didn’t reply to the case so it didn’t respond to any of these allegations. It’s certainly conceivable that this was a bad faith registration. But I don’t think the burden of proof was met. This is very different from a .xxx case over a term that can only be one brand (Richard Branson) or in which the domain owner made their intent clear (HEB.xxx).

Given the sensitive nature of .xxx, I suspect that panels will always give the benefit of the doubt to the complainant. Especially when the respondent is AWOL.


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