Generic Top Level Domain Name (gTLD) Decisions

P.O. BOX 50191
MINNEAPOLIS, MINNESOTA 55405 USA

TV Azteca, S.A. de C.V.
Periferico Sur N 4121
Col. Fuentes Del Pedregal
14141 Mexico, D. F.

COMPLAINANT

vs.

Allan Oretegaray
P. O. Box 1195
Duarte, CA 91109

RESPONDENT

DECISION
Forum File No.: 92533

The above matter came on for an administrative hearing on March 8, 2000 before the undersigned on the Complaint of TV Azteca, S.A. de C.V., hereinafter "Complainant", against Allan Ortegaray, hereinafter "Respondent". Complainant was represented by Marc L. Delflache and Eric B. Hall, 1301 McKinney, Suite 5100, Houston, TX 77010-3095. Respondent was not represented but filed his response pro se.

Upon the written submitted record, the following DECISION is made:

PROCEDURAL FINDINGS

Domain Names: tvazteca.com; tvazteca.net; and, tvazteca.org

Domain Name Registrar: Network Solutions

Domain Name Registrant: For tvazteca.com, tvazteca.com E-mail Services

For tvazteca.net, tvazteca.net E-mail Services

For tvazteca.org, Dominio Registrante

Date of Registration: For tvazteca.com, 10/14/99

For tvazteca.net, 12/6/97

For tvazteca.org, 4/30/99

Date Complaint Filed: January 26, 2000

Date of Commencement of Administrative Proceeding: January 26, 2000

Date of Response: Respondent filed a response on February 29, 2000

After reviewing the Complaint and determining it to be in administrative compliance, the National Arbitration Forum (The Forum) forwarded the Complaint to the Respondent in compliance with Rule 2(a), and the administrative proceeding was commenced pursuant to Rule 4(c). In compliance with Rule 4(d), The Forum immediately notified Network Solutions, the Internet Corporation for Assigned Names and Numbers (ICANN), and the Complainant that the administrative proceeding had commenced. Respondent filed a response to the Complaint.

The Respondent registered the domain names with Network Solutions, the entity that is the Registrar of the domain name. By registering its domain name with Network Solutions, the Respondent agreed to resolve any dispute regarding its domain name through ICANN'S Uniform Domain Name Dispute Resolution Policy.

FINDINGS OF FACT

1. The Complainant TV Azteca, S.A. de C.V. is the second largest television broadcasting company in Mexico. It owns and operates two national television networks through two anchor stations in Mexico City and numerous other stations located throughout Mexico. It also owns some 28 trademarks and service marks registered in the United States, Mexico, Canada and Spain. Each of those registrations is for the mark TV AZTECA, either alone or with a design, in connection with a variety of goods and services. These marks have been used by the Complainant in Mexico since September, 1992 and in the United States, Canada and Spain since 1992.
2. The Respondent, Allan Oretegaray does not deny that he is the registrant of the domain names in dispute. In fact, his response addresses the issues raised by the Complaint and does not contest the allegation that he is the de facto registrant. The undersigned therefore considers Allan Oretegaray to be the proper party Respondent and the de facto registrant of the domain names in dispute.
3. The domain names in question are identical or confusingly similar to the trademarks and service marks in which the Complainant has statutory and common law rights.
4. The Respondent registered the domain names in bad faith and has no rights or legitimate interests in the domain names in question. The following is evidence of Respondent's bad faith:
   
1. He has never been commonly known or otherwise known by the domain names in question.
2. Respondent has not offered any explanation for how he arrived at the domain names in question. The only reasonable explanation is that the names are identical to the well-established trademark names used by the Complainant.
3. The Respondent has made no legitimate use of the domain names except to refer customers to various other web sites of the Respondent.
4. The Respondent has a profit motive evidenced by his offer to sell the domain names.
5. The Respondent has demonstrated a pattern of bad faith by the registration of at least one other prominent domain name. Specifically, Televisa, S.A. obtained a United States Trademark for the name MUNDO LATINO in 1987. In 1997, the Respondent registered the domain name MUNDOLATINO.COM with Network Solutions.
   
5. Complainant's prayer for relief requests that the domain names "tvazteca.com/net/org" be transferred to Complainant.

CONCLUSIONS

The undersigned certifies that he has acted independently and has no known conflict of interest to serve as the Arbitrator in this proceeding. Having been duly selected and being impartial, the undersigned makes the following findings and conclusions:

1. The domain names "tvazteca.com", "tvazteca.net" and "tvazteca.org" registered by the Respondent on 10/14/99, 12/6/97 and 4/30/99 respectively are identical and confusingly similar to trademarks in which the Complainant has rights, and to which the Respondent has no right or legitimate interest.
2. The Respondent registered the domain names primarily for the purpose of using the Complainant's name and reputation for profit.
3. By using the domain names, the Respondent has and will intentionally attempt to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant's marks as to source, sponsorship, affiliation, or endorsement of the web site.
4. Respondent registered and used the domain names in bad faith.

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(I), it is decided as follows:

THE UNDERSINGED DIRECTS THAT THE DOMAIN NAMES "AZTECA.COM", "AZTECA.NET" AND "AZTECA.ORG" BE TRANSFERRED TO COMPLAINANT TV AZTECA S.A. De C.V.

Dated: March 8, 2000, by Judge Daniel B. Banks, Jr.(Ret.), Arbitrator.