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Generic Top Level Domain Name (gTLD) Decisions |
Marty Stuart. v. Marty Stuart Fan Page C/O Sherry
Mattioli
PARTIES
The Complainant is Marty Stuart Marty Stuart Tours, Inc., Nashville, TN
(“Complainant”) The Respondent is Marty
Stuart Fan Page c/o Sherry Mattioli, Nashville, TN (“Respondent”).
The
domain name at issue is <martystuart.com>,
registered with Register.Com.
PANEL
The
undersigned certifies that he has acted independently and impartially and to
the best of his knowledge has no known conflict in
serving as Panelist in this
proceeding.
Edward
C. Chiasson, Q.C. as Panelist.
PROCEDURAL HISTORY
The
Complainant submitted a Complaint to the National Arbitration Forum (the
“Forum”) electronically on September 3, 2003; the Forum
received a hard copy of
the Complaint on September 5, 2003.
On
September 4, 2003, Register.Com confirmed by e-mail to the Forum that the
domain name <martystuart.com>
is registered with Register.Com and that the Respondent is the current registrant
of the name. Register.Com has verified
that Respondent is bound by the Register.Com registration agreement and has
thereby agreed to resolve domain-name
disputes brought by third parties in
accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On
September 11, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”),
setting a deadline
of October 1, 2003 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent via
e-mail, post and fax, to all entities and
persons listed on Respondent’s registration as technical, administrative and
billing contacts,
and to postmaster@martystuart.com by e-mail.
A
timely Response was received and determined to be complete on September 24,
2003.
On October 8, 2003, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the Forum appointed Edward C.
Chiasson, Q.C. as Panelist.
RELIEF SOUGHT
The
Complainant requests that the domain name be transferred from the Respondent to
the Complainant.
BACKGROUND AND PARTIES’ CONTENTIONS
A. Complainant
The
following information derives from the Complaint.
The
Complainant is a professional entertainer whose name is recognized world
wide. He has been performing
professionally as a musician since 1971.
The
Complainant enjoys a valuable reputation and goodwill of value as a result of (a) the extensive sales
and advertising of numerous musical compositions and recordings bearing his
name; (b)
the fame and acclaim surrounding his musical services, individually,
and the popularity of the various film media in which he has
appeared; (c) the
widespread public recognition of the name MARTY STUART and the association of that
name with the Complainant; and
(d) the high quality and nature of the
Complainant’s musical compositions, musical recordings and musical services.
This
goodwill, which has come to be associated with the unique and distinctive
features of the Complainant and his work, has given
great monetary value to the
Complainant’s exclusive right to exploit the name and trademark, MARTY
STUART.
The Complainant’s common law trademark MARTY STUART has
undoubtedly acquired secondary meaning in the mind of the public.
The
Complainant’s name and trademark is distinctive, famous and widely recognized
throughout the United States and the world by millions
of music fans. See Roberts v. Boyd, D2000-0210 (WIPO
May 29, 2000) (finding that trademark registration was not necessary and that
the name "Julia Roberts"
has sufficient secondary association with
the Complainant that common law trademark rights exist); Jagger v. Hammerton, FA 95261 (Nat. Arb. Forum Sept. 11, 2000)
(Complainant held common law trademark rights in his famous name MICK JAGGER); see also Smart Design LLC v. Hughes,
D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy 4(a)(i) does not
require Complainant to demonstrate ‘exclusive rights,’
but only that
complainant has a bona fide basis for making the complaint in the first place).
The
Respondent registered the subject domain name on August 5, 2000.
The
subject domain name is identical to the Complainant’s trade name and service
mark, Marty Stuart, and is confusingly similar.
A
music index Internet site to which the subject domain name resolves, identifies
the Respondent’s site as the “Official Fan Site”. The page contains a link to the Respondent’s website.
One
of the Complainant’s attorneys corresponded with the Respondent in October 2001
in an attempt to resolve the dispute amicably.
Counsel also had several telephone conversations with the Respondent
regarding the subject domain name.
The
Complainant, through legal counsel, offered to reimburse the Respondent for any
expenses incurred in the registration and operation
of the website to which the
subject domain name resolves. The Respondent at first agreed to transfer the
subject domain name, but
ultimately refused.
The
Respondent is not known commonly by the trade name or service mark and does
not have any rights to the use of the
trade name and service mark, Marty Stuart. The Respondent is not licensed or
otherwise authorized
to use the Complainant’s mark. See Compagnie de Saint
Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no
rights or legitimate interest where Respondent was not commonly known by the
mark or never
applied for a license or permission from Complainant to use the
trademarked name); see also Nokia Corp.
v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding that Respondent is not
commonly known by the mark contained in the domain name where Complainant
has
not permitted Respondent to use the NOKIA mark and no other facts or elements
can justify prior rights or a legitimate connection
to the names
"Nokia" and/or "www.nokia.com").
The
Respondent’s use of the subject domain name and mark is in violation of the
Complainant’s common law trade name rights and his
rights of privacy and
publicity. It is also a violation of
the United States Trademark Act of 1946 (15 U.S.C. '1125).
The
Respondent’s use of the domain name has created confusion in the consumer
marketplace, as evidenced by a reference to the subject
domain name at the end
of an recent Associated Press newswire article picked up by the Kansas City
Star.
The
Respondent’s website has numerous advertisements on the home page, linking to
such commercial entities as the Country Music Television
network, WSM Radio,
Country Music Hall of Fame and the Grand Ole Opry. Even though the Respondent posts a disclaimer at the bottom of
the web page, such vivid and colorful advertisements indicate affiliation
between these entities and the website and authorization from the
Complainant. These advertisements
create a likelihood of confusion as to source and affiliation between the
Respondent and the Complainant.
The
Respondent’s various uses of the Complainant’s mark as a "fan site"
does not substantiate Respondent’s rights or legitimate
interests. See Marino v. Video Images Prod., D2000-0598
(WIPO Aug. 2, 2000) (stating, "[I]n fact, in light of the uniqueness of
the name <danmarino.com>, which is
virtually identical to the
Complainant’s personal name and common law trademark, it would be extremely
difficult to foresee any justifiable
use that the Respondent could claim. On
the contrary, selecting this name gives rise to the impression of an
association with the
Complainant which is not based in fact."); see also Kasparov v. Am. Computer Co., FA
94644 (Nat. Arb. Forum May 30, 2000) (finding no legitimate rights and
interests when Respondent used Complainant's name as a
portal to a website
which, without permission, associated the Complainant as an endorser of
Respondent's causes).
The
subject domain name is so similar to the Complainant’s trademark name, that a
reasonable Internet user would assume that it is
somehow associated with the
Complainant’s common law mark. See
Surface Protection Indus., Inc. v. The Webposters, D2000-1613 (WIPO Feb. 5,
2001) (finding the domain name confusingly similar "so as to likely
confuse Internet users who may
believe they are doing business with Complainant
or with an entity whose services are endorsed by, sponsored by, or affiliated
with
Complainant; hence, satisfying the confusing similarity requirement");
see also Treeforms, Inc. v. Cayne Indus.
Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that
confusion would result when Internet users, intending to access Complainant’s
website, think that an affiliation of some sort exists between the Complainant
and the Respondent, when in fact, no such relationship
would exist).
The
Respondent has posted personal messages addressed to the Complainant which
imply that it has authority from the Complainant to
do so.
By
its actions, the Respondent is misleadingly diverting consumers away from the
Complainant’s website using the subject domain name. This diverts business away from the Complainant and relies on the
goodwill established by the Complainant in over thirty years of
performing
under the trade name. An online music
listing of official fan websites identifies the Respondent’s website alongside
the Complainant’s.
The
Respondent intentionally misrepresented her contact telephone number in the
registration of the subject domain name as 615-111-1111. This is an indication of bad faith intent.
The
Respondent's conduct prevents the Complainant from identifying his mark, MARTY
STUART in a corresponding domain name.
The
Respondent's conduct demonstrates intent to disrupt the business of the
Complainant, as described in Paragraphs 4(b)(iii) of the
ICANN Uniform Domain
Name Dispute Resolution Policy and demonstrates bad faith.
The
Respondent's conduct demonstrates an intent to attract, for commercial gain,
Internet users to the Complainant’s website as described
in Paragraphs 4(b)(ii)
of the ICANN Uniform Domain Name Dispute Resolution Policy and demonstrates bad
faith.
By
the actions described herein, the Respondent is tarnishing the trade name and
service mark of the Complainant and preventing him
from utilizing his
legitimate trade name and mark. See Canadian Tire Corp. v. 849075 Alberta
Ltd., D2000-0985 (WIPO Oct. 19, 2000) (finding that the domain names
<ecanadiantire.com> and <e-canadiantire.com> are confusingly
similar to Canadian Tire’s trademarks); see
also EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that
Respondent’s domain name <eebay.com> is confusingly similar to the
Complainant’s
registered trademark).
B. Respondent
The following information derives
from the Response
The
Respondent agrees that the Complainant may have acquired secondary meaning or
common law trademark as a country music musician,
entertainer. The Respondent
further agrees that the subject domain name is identical to the Complainant’s
name.
The Respondent has been a
devoted fan of the Complainant, since November 1991, has attended more than 100
concerts and shows performed
by the Complainant, purchased every commercially
released album recorded by the Complainant and has spent well over $1,500 on
licensed
merchandise available for sale to the the Complainant’s fans.
The Respondent was an
11-year member of the Complainant’s fan club until the Complainant terminated
the membership on May 15, 2003.
The Respondent has met the
Complainant dozens of times and the Complainant knows the Respondent by name.
The
Complainant has known about the website to which the subject domain name
resolves from talking with his fans and the website was
the topic of discussion
between the Respondent and the Complainant during a meeting (also attended by
the Complainant’s then manager,
his fan club president, and the Respondent’s
husband) in the Complainant’s office in May 1998 wherein the Complainant
offered to
pay for the hosting of the Respondent’s website and the Respondent
declined the offer.
The Respondent has no
control over other websites that choose to link its website with theirs or as
to how it may be listed. The Respondent
works a full-time job and cannot be
expected to spend time “policing” the web to find websites that link the
website to which the
subject domain name resolves with other websites.
The Respondent is not
familiar with and has never (prior to viewing the Exhibits filed by the
Complainant in this proceeding) visited
the websites listed in the
Complaint. The Respondent never
instructed or requested a link to her website from those websites. She has
emailed the webmasters and/or contacts
of those websites requesting that the
listing be changed to “Unofficial.”
The Respondent notes that
at the bottom of the Club Nashville links (which currently can be viewed at the
top of that webpage) it
states: “Here are the official websites of country’s
major artists. We’ve also found that some of the more interesting (and sometimes
better) are maintained by fans or other 3rd parties. For that
reason, we sometimes include a superb non-official site.”
On October 17, 2002 (not 2001 as stated in the
Complaint), the Respondent received a telephone call from the Complainant’s
attorney.
He asked if the Respondent had registered the subject domain name.
The Respondent replied that she had. The attorney then asked if
the Respondent
would transfer the subject domain name to the Complainant as it was a
“condition” of the Complainant’s recording contract
that the Complainant have
control of the subject domain name. The “condition of his recording contract”
came up again in the conversation.
The Respondent agreed to transfer the
subject domain name based on that condition.
Nothing
in the Complaint or affidavit filed in support alludes to that statement.
The
Complainant has a signed recording contract without having control of the
subject domain name. The Complainant’s attorney attempted
to mislead the
Respondent into agreeing to transfer the domain name. During the conversation
the lawyer also stated that “I know
you’re a friend of the family” and that he
had heard “good things” about the Respondent’s website. Respondent had one
telephone conversation
with the attorney, not “several” as stated in the
After
realizing she had been misled by the attorney and after researching the web on
the issue of domain name disputes, the Respondent
realized she had a legitimate
right to use the subject domain name and was under no obligation to transfer it
to the Complainant.
Respondent launched the Marty Stuart
Fan Page on January 25, 1998. It was hosted initially at <designer.com/martystuart>
then later at <pagedepot.com/martystuart>.
The website has been
hosted at the domain name, <martystuart.com>
since August 9, 2000. The Respondent created the website on the Complainant
(her favorite country music artist) because there was
little information on the
Internet about the Complainant. The
Respondent wanted an avenue where fans could gather, share information,
photographs, concert reviews, memorable Marty moments,
fan comments, i.e.: a
website for the fans, by the fans. The website features 1,285 webpages and over
1,000 photos. Since beginning work on
the website in September 1997, the Respondent has spent thousands of hours
creating and maintaining the website.
The Complainant was aware the website
existed and has said nothing to Respondent to have it removed.
Because
the Respondent appears to be the Marty Stuart Fan Page and the Marty Stuart Fan
Page has been hosted at the website to which
the subject domain name resolves
for more than three years, there could be a valid argument that the Respondent
has been commonly
known by the domain name.
The
Respondent had no prior knowledge of the article referred to in the Complaint
and was not contacted by its author.
The
website to which the subject domain name resolves has no advertising banners
and is not part of any referral programs.
The “advertisements” alluded to by the Complainant are simply colorful
links to other country music websites that fans might like
to visit. Country
Music Television (CMT) and Great American Country (GAC) play the Complainant’s
music videos and the Complainant
has appeared many times (the latest being
within the past two months) on their programs. WSM Radio plays the
Complainant’s music
and the Complainant has appeared live in the studio on many
occasions. The Complainant is a member of the Grand Ole Opry and performs
on
its stage frequently. The Complainant served as President of the Country Music
Foundation (which oversees the Country Music Hall
of Fame) for six years. Those
links are there for the convenience of the Complainant’s fans who may want to
visit those websites
from the Respondent’s website. The “vivid and colorful
advertisements” featured on the website are graphics or logos through which
the
links can be accessed via a mouse.
The
Respondent has never received any income from the website and in addition to
spending countless hours a week voluntarily working
on and updating the
website, pays a monthly fee to have the website hosted.
The
main page of the website to which the subject domain name resolves clearly
reads “The Marty Stuart Fan Page.” The Respondent has
a disclaimer at the
bottom of the page as well as on the “About This Website” and “Welcome Page”
pages.
The
Respondent has never indicated its website was an official website or an
official fan site for the Complainant. An animated display
on the main page
says “Have a Marty Party, Visit Marty’s Official Website” and it links to the
Complainant’s Official Website. Another
link to the Official Website appears
first on the “Other Marty Links” page.
In
addition, since 1999, the Complainant’s Official Website (up until a redesigned
website was launched after September 8, 2003) provided
a link to the
Respondent’s website. The Respondent enjoys supporting the Complainant and his
music, maintaining an outstanding, informative
fan website and providing the
Complainant’s fans with information they cannot find anywhere else. The website
is updated frequently
and provides a legitimate online service to the
Complainant and his fans.
As
a long-time fan of the Complainant, the Respondent has never and would never
use the subject domain name for commercial gain to
misleadingly divert
consumers or to tarnish the trademark or service mark at issue. In fact, the
website to which the subject domain
name resolves benefits and promotes the
Complainant at no cost to the Complainant.
Prior
domain dispute decisions have ruled that a fan website may constitute
legitimate, noncommercial, fair use of the domain name,
i.e.: Van Halen v.
Morgan, Case No. D2000-1313 (WIPO, December 20, 2000) (finding status as a
fan might perhaps justify a finding of legitimate interests if
Respondent
provided evidence of offline fan activity of which the website was an extension
or if the website had been operational
for a sufficient period); The Estate
of Tupac Shakur v. Barranco, Case Nos. AF-0348a and AF-034b (eResolution,
October 23, 2000) (finding the position asserted by the Claimant, if accepted
would
effectively prohibit any fan club from being established on the internet
if it mentioned in the site name an artist’s name, where
part or all of that
name related to a registered mark or even perhaps transgressed claims of common
law rights in a name. It would
also permit persons in the position of this
Claimant to unjustly enrich themselves by confiscating the work of fans and
admirers
in establishing a website supporting their favorite artists without
any opportunity for compensation); Estate of Gary Jennings v. Submachine,
Case No. D2001-1042 (WIPO, October 25, 2001) (finding legitimate interests when
using the domain name in connection with a website
to share information on
Complainant and where Respondent clearly indicates on its website that it is
not affiliated or endorsed by
the Complainant and is, therefore, not
misleadingly diverting consumers).
The Respondent
registered the subject domain name for the express purpose of hosting the Marty
Stuart Fan Page for the fans of Marty
Stuart and for no other purpose. The
Complainant was well aware of the website’s existence at the time it was
registered and did
not object to it at that time. The Respondent has never
offered to sell the domain name to the Complainant or anybody else. There
is no
commercial gain to the Respondent through use of the domain name. The website
generates no income for the Respondent and Respondent
pays a fee to have the
website hosted.
Since
1996, the Complainant’s official website has been hosted at
<martyparty.com>.
The
subject domain name was registered, at that time, to Jim Salmon who had
registered several hundred celebrity names and later linked
them to an “adult”
website. Twenty-seven country music artists filed a class action lawsuit on
April 6, 1998 in U.S. District Court
and on July 6, 1998 were awarded ownership
of their domain names. The Complainant was not a party to the lawsuit and Mr.
Salmon retained
registration of the name <martystuart.com>.
On
August 5, 2000, the Respondent checked the availability of the domain names
connected with the Complainant and found that <martystuart.net>
was
registered to the Complainant (through his fan club, although the registration
of that domain name has since expired and, as
of the date of this
Response,<martystuart.net> is again available for registration, but that
the subject domain name was available.
The
Respondent registered the subject domain name upon seeing it was available. The
Complainant had an equal opportunity to register
the subject domain name. The
Respondent had never made note of the expiration date of the registration and
had no idea how long the
name had been available (one day, one week, one month,
six months).
Had
the Complainant wanted the subject domain name, he could have noted the
expiration date in the WHOIS Database and registered it
immediately upon its
availability. The Complainant has had not one, but two opportunities to control
the domain name prior to its
registration by the Respondent.
In
addition, how can the Respondent be preventing the Complainant from identifying
his mark when the Complainant has allowed his registration
(since 1999) of
<martystuart.net> to expire? If the Respondent were to intentionally
prevent the Complainant from identifying
his mark, it would have registered all
available extensions of the Complainant’s name.
The
Complainant has known the Marty Stuart Fan Page was hosted at the website to
which the subject domain name resolves, and the Respondent
has had personal
contact with the Complainant and his representatives, but the issue of the
subject domain name was never raised
until October 17, 2002 (again, not 2001 as
stated in the Complaint).
The
Respondent vehemently denies that it is a cybersquatter. There has been no pattern of such conduct.
The Complainant clearly knows that accusation is untrue.
The
initial registration of the subject domain name contained the correct phone
number. It was changed for security reasons because
it is the Respondent’s home
phone number and the WHOIS database allows access to millions of people. The
contact information, address
and email address are correct and the correct
phone number is listed on the billing information.
The
Respondent registered the subject domain name for the sole purpose of hosting
the Marty Stuart Fan Page website for the fans of
the Complainant and for no
other purpose. The website was meant to complement the Complainant’s Official
website and offer the fans
an avenue for sharing thoughts, comments and
experiences attending concerts and meeting the Complainant.
The
Complainant, while accusing Respondent of using the website for commercial
gain, has offered no evidence of such.
The allegation is untrue. The Respondent’s website has generated no
income over the past six-and-one-half years and the Respondent
has spent over
$2,500 of her own money to host the website.
The
Complainant’s Official website is ranked one of the most popular search engines
and the Respondent’s listing in the search engines
is clearly indicated as the
Marty Stuart Fan Page. Parts of the
Respondent’s disclaimer are clearly featured in most of the descriptions.
Until
a recent (September 2003) redesign of the Complainant’s official website, the
Respondent’s website was linked off the “Links”
page of the Official Website,
implying approval and support of the website and for the Respondent to own and
maintain the site.
Should
there be the appearance of confusion, inadvertently it may have been caused by
the Complainant himself after bringing the Respondent
into his fan club as
co-editor of the fan club newsletter.
On
June 16, 1998, the Respondent was introduced at the Complainant’s Fan Club
Party (attended by several hundred members) by the Complainant’s
fan club
president. The exact introduction as taken from a videotape of the fan club
party was “Sherry has a website and is doing
a wonderful job and I know lots of
you have written to her.” For some unknown reason, the plan of the Respondent
working with the
fan club never materialized although the news had been posted
on the Complainant’s AOL message board and other email groups and was
announced
in the Complainant’s fan club newsletter stateding: “New Co-Editor. Also named
as the co-editor is Sherry Mattioli. Many
of you have met Sherry and her
husband Mario at Marty’s shows or at the Opry. She will be helping contribute information
for the
newsletters. She also has a great fan site on the web at http://www.designer.com/martystuart.”
On
September 10, 1998, in a face-to-face conversation, the Complainant asked the
Respondent to write a column in his quarterly fan
club newsletter. In that same
conversation, the Respondent said that it would like the Complainant to view
its website and mentioned
that an employee of the Complainant could show it to
the Complainant. The Complainant responded, “I want you to show it to me” and
said the Respondent could come by the office “sometime” and show it to the
Complainant. That never happened, but the Respondent did
write four columns for
the newsletter. The Respondent’s website was mentioned in two of those columns
(along with a picture of the
Complainant with the Respondent) as well as the
Respondent’s email address as a point of contact for the fans. Although this
was
prior to Respondent’s registration of the subject domain name, this appears
to associate the Respondent and the Respondent’s website
to the Complainant in
the eyes of the Complainant’s fans.
The
Complainant, his employees and representatives knew the Respondent was using
the Complainant’s name in the title of the website
and clearly knew the fan
site existed. This “implied consent” is evidenced by the discussion of the
website in a meeting between
the Complainant and the Respondent, the
introduction of the Respondent at the fan club party mentioning the website,
the link to
the Respondent’s website from the Official Website, the mention of
the Respondent’s website in the Complainant’s fan club newsletters
and in
emails to the Respondent from the Complainant’s employees and representatives
proving they had viewed the website.
The
Complainant asked a certain fan if she had seen the Respondent’s website.
The
Complainant has never requested the Respondent not to use its name in the title
of the website and it has never indicated in any
conversation with the
Respondent that the Respondent could not use its “name”.
The
Respondent asserts that many fans of the Complainant have benefited from the
website to which the subject domain name resolves.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a
complaint
on the basis of the statements and documents submitted in accordance
with the Policy, these Rules and any rules and principles of
law that it deems
applicable.”
Paragraph
4(a) of the Policy requires that the Complainant must prove each of the
following three elements to obtain an order that
a domain name should be
cancelled or transferred:
(1)
the domain
name registered by the Respondent is identical or confusingly similar to a
trademark or service mark in which the Complainant
has rights;
(2)
the
Respondent has no rights or legitimate interests in respect of the domain name;
and
(3)
the domain
name has been registered and is being used in bad faith.
Reference
has been made to domestic court and domain name dispute decisions. While these
are neither controlling not binding on this
Administrative Panel, often
reference to them is of assistance.
The Complainant asserts that the subject
domain name is identical and confusingly similar. The propositions do not equate and require different analyses.
The Respondent concedes that the
Complainant has acquired a common law trademark for the words MARTY STUART and
that the subject domain
name is identical to it.
The Administrative Panel is satisfied
that the Complainant has met the requirements of Policy Paragraph 4(a)(i).
The Respondent registered the subject
domain name for the purposes of a fan club of the Complainant. Standing alone, this supports a legitimate
interest in the subject domain name.
The conduct of the Complainant suggests that initially he either
supported or did not oppose the Respondent’s efforts to support him,
but it is
clear that he no longer does so.
Much has been written concerning domain
names associated with fan clubs and sites that criticize. They both engage
considerations
of free speech and intellectual property rights.
The Complainant has a common law
trademark right to the words MARTY STUART. Although the Respondent contends
that she is using the
subject domain name to support the Complainant, it is
that Complainant’s decision who should use its trademark for that purpose. The Complainant’s objection to the subject
domain name deprives the Respondent of a legitimate interest in it.
The Administrative Tribunal is satisfied
that the Complainant has met the requirements of Policy Paragraph 4(a)(ii).
A finding that a Respondent does not have a legitimate
interest in a domain name that is identical to the mark of another does not
lead automatically to a conclusion of bad faith, but the facts that give rise
to the finding may be relevant to the bad faith inquiry.
In this case, the Respondent’s purpose
for registering the subject domain name was to support the Complainant. Her use has had the same purpose. There is no evidence that she either
intended to sell the subject domain name or seeks any personal financial
benefit from it.
It is clear that the registration and use
of the subject domain name blocks the Complainant from acquiring and using it,
but standing
alone that is not determinative of bad faith. The fact that the Complainant did little to
acquire the subject domain name when others pursued similar domain names and
that he has
allowed a related domain name to expire, also undermine an adverse
finding based on blocking.
The Complainant appears not to have been
completely frank concerning the exchange between his attorney and the
Respondent, but little
turns on the Respondent’s reversal of her willingness to
transfer the subject domain name in the context of bad faith.
On the material presented to it, the
Administrative Panel is not satisfied that the Complainant has met the
requirements of paragraph
4(a)(iii).
DECISION
Having
not established all three elements required under the ICANN Policy, the
Administrative Panel concludes that relief shall be
DENIED.
It is ordered that the Complaint is
dismissed
Edward
C. Chiasson, Q.C.
Dated:
October 22, 2003
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