Applicant: Premiere Vision, Lyon, France (Lyon, France)

Applicant’s agent: Cabinet Germain & Maureau, France

Respondent: PV (PreVision), Seoul, Republic of Korea (Seoul, Republic of Korea)
2. Domain Name and Registrar

Domain name disputes are to be , and the disputed domain name Cydentity, Inc. dba Cypack.com is registered.
3. Procedural History

Application, the applicant resolve the dispute November 25, 2009 World Intellectual Property Organization (WIPO) Arbitration and Mediation Center (the “Center” Supplemental Rules) was made on November 26, 2009 Center Cydentity, Inc. dba Cypack.com with respect to the disputed domain name resolution requests 등록인 were sent an email. November 27, 2009 Cydentity, Inc. dba Cypack.com emailed response to the center through the Respondent listed as the registrant and registration is confirmed that contacts were provided. Application of the Dispute Resolution Center Uniform Domain Name Dispute Resolution Policy ( “Policy”), this regulation on Rules ( “Rules”) and the Uniform Domain Name Dispute Resolution Policy for the WIPO Supplemental Rules ( “Supplemental Rules”) in accordance with checking whether the formal requirements were met.

Center Rules, Article 2 (a) Section and Paragraph 4 (a) Pursuant to December 14, 2009, “Dispute Notice Form and Commencement of Administrative Proceeding” to resolve conflicts with your application, express mail and international transport through the Respondent was sent to. Rules, Article 5 (a) pursuant to Respondent to submit a response to the January 2010 deadline for notification of three discretionary, but, due to the Respondent that he did not submit a Response Center, January 5, 2010 the Respondent Check the mijechul, was notified.

Therefore, the panel’s sole applicant named physician, the Center for Dispute Resolution of the Administrative Panel saw panel member Andrew J. Park was appointed a member of the panel as a declaration of independence, acceptance, and fair and accepted rules and procedures pursuant to Chapter 7 Panel January 13, 2010 was a legitimate configuration.
4. Factual

Complainant fabrics, textile and apparel trade show held for the fashion industry to the French company was founded, PREMIERE VISION and Seller, trademark and domain name are used. PREMIERE VISION trade fair of the applicant in the U.S., Russia, Brazil, Japan, and is being held all over the world including, France, within two times a year is being held. PREMIERE VISION Korea also are participating in trade fairs.

Complainant owns the following domain names are:

Domain Name

Registration Date

premiere-vision.com

30/04/2004

premierevision.com.cn

19/11/2003

premiere-vision.fr

30/04/2004

premierevision.fr

10/05/2004

premierevision.cn

25/01/2005

premierevision.org

08/04/2005

premierevision.info

08/04/2005

premierevision.biz

08/04/2005

premierevisionpluriel.com

27/04/2005

premierevision-pluriel.com

27/04/2005

premierevision.eu

09/07/2006

premiere-vision.eu

13/06/2006

premierevisionpluriel.eu

30/04/2006

premierevision-newyork.com

23/03/2006

premierevision.ru

31/03/2006

denimbypremierevision.com

21/06/2007

premierevision.it

11/12/2008

premierevision-jitac.com

28/09/2009

premierevision-tokyo.com

28/09/2009

premierevision-jitac.jp

30/09/2009

premierevision.jp

30/09/2009

All of the above are now the domain name of the applicant for a website connected to the trade fair business is being used.

Trademarks

Country

Application No.

Filing Date

Registration Number

Added

PREMIERE VISION

Argentina

2 042 850

01/08/1996

2 224 507

11/04/2008

PREMIERE VISION

Brazil

819 699 411

17/12/1996

819 699 411

06/11/2007

DENIM BY PREMIERE VISION

Brazil

829 304 606

18/09/2007

PREMIERE VISION

Chile

354 207

04/09/1996

807 899

13/06/2007

DENIM BY PREMIERE VISION

China

6 282 928

18/09/2007

PREMIERE VISION

Colombia

96 045 192

26/08/1996

194 421

24/02/1997

PREMIERE VISION

European Union

000 301 002

14/06/1996

000 301 002

14/11/2001

DENIM BY PREMIERE VISION

European Union

006 275 441

13/09/2007

006 275 441

20/06/2008

PREMIERE VISION

France

95 598 308

16/11/1995

95 598 308

16/11/1995

PREMIERE VISION

France

1 048 705

05/04/1978

1 625 674

21/03/1988

PREMIERE VISION PLURIEL

France

05 3 357 173

03/05/2005

05 3 357 173

03/05/2005

PREMIERE VISION

Hong Kong

96 07850

29/06/1996

8108/1999

28/06/1996

DENIM BY PREMIERE VISION

Hong Kong

300 954 171

13/09/2007

300 954 171

13/09/2007

PREMIERE VISION

International Registration

658 409

18/06/1996

658 409

18/06/1996

PREMIERE VISION

Israel

106 047

27/06/1996

106 047

27/06/1996

PREMIERE VISION

Japan

8-91378

13/08/1996

4 244 726

26/02/1999

PREMIERE VISION

Japan

8-91377

13/08/1996

4 158 140

19/06/1998

PREMIERE VISION

Republic of Korea

96-8025

04/07/1996

41 764

17/03/1998

DENIM BY PREMIERE VISION

Russia

2007728398

14/09/2007

368 537

25/12/2008

PREMIERE VISION

South Africa

96 08802

02/07/1996

96 08802

02/07/1996

PREMIERE VISION + LOGO

Switzerland

9673/1997

03/12/1997

452 741

08/07/1998

PREMIERE VISION

Taiwan

(85) 32091

29/06/1996

092 820

01/08/1997

PREMIERE VISION

Tunisia

EE96.0781

27/06/1996

EE96.0781

27/06/1996

PREMIERE VISION

Turkey

99/010669

02/07/1999

99/010669

02/07/1999

PREMIERE VISION

United States

649 525

16/03/1987

1 541 813

30/05/1989

PREMIERE VISION EUROPEAN PREVIEW NEW YORK

United States

78/662,869

01/07/2005

3 162 034

24/10/2006

DENIM BY PREMIERE VISION

United States

77/279,897

14/09/2007

3 632 228

02/06/2009

The disputed domain name was registered in April 2002 to 30 days.
5. Parties’ Contentions
A. Respondent’s claim

The applicant’s claim in as follows:

(i) Respondent’s right to bunjaengdomeinyireung Complainant owns the trademark PREMIERE VISION is the same.

(ii) the Respondent regarding the disputed domain name does not have any rights or legitimate interests.

(iii) The Respondent registered the disputed domain name in bad faith and is being used.

The first applicant at the port of the disputed domain name Respondent only on the applicant’s trademark PREMIERE VISION “. Com” and attached claims are being used. The second port of the applicant Respondent no rights or legitimate interests in the disputed domain name with no evidence has been presented as follows. (i) The Respondent registered the trademark PREMIERE VISION, or used for any permission from the applicant is received. (ii) the disputed domain name is not currently being used in practically the Respondent to provide goods or services using the disputed domain name, or you’re not ready for shows. (iii) the Respondent in the disputed domain name is not known. (iv) the Respondent of the disputed domain name a legitimate non-commercial purposes and is not in good faith. Anti-third of the applicants that the Respondent registered the disputed domain name was written in the address was fake, since the Respondent acquired the disputed domain name at this domain name, as well as not using the disputed domain name in any website is not connected to argue.

The disputed domain name associated with the applicant’s e-mail and the second one three times, including a certified letter to take over the Respondent was contacted. However, the Respondent’s fake phone numbers for the Camera and the applicant’s e-mail to the applicant’s silence, these efforts were not successful applicants were unable contents of the new certificate to the applicant returned to the payee was unknown.
B. Respondent’s claim

Respondent is the applicant’s claims against the above did not provide any answers.
6. Review and determine

Policy Paragraph 4 (a) section of the Applicant and the Respondent of the disputed domain name, transfer or cancellation is intended to apply for relief in order to receive all of the following three requirements must be proven.

(i) the applicant has the right to a trademark or service mark registration of the domain name is identical or confusingly similar to you’re all about,

(ii) the registration of the domain name registrant rights or legitimate interests for the ahnihada not have one, and

(iii) registered the domain name in bad faith registration and use is being said.

Respondent Rules, Article 5 (a) section in under the deadline to file a response has not submitted a response to the Panel that the applicant’s claim is based on the applicant’s decision to accept the fact that both claims can be . In addition, the Panel regarding the Respondent in breach of the duty to make reasonable inferences can be. Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009 Reference.
A. Trademarks and domain names identical or similarity

Registered the domain name of the applicant from the previous, already associated with PREMIERE VISION and owned many brands have been registered. In addition, the applicant around the world PREMIERE VISION widely used by the Seller and the brand has a lot of evidence has been presented. The disputed domain name Complainant’s trademark and generic top-level domain “. Com” consists of. However, the top-level domain, ie, “. Com”, “. Org”, “. Net” domain names and trademarks, etc. The similarity of the same, or does not affect the decision. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429 Reference. Therefore the Panel that the Complainant’s trademark and the disputed domain name confusingly similar to the applicant and the provisions Article 4 (a) protest requirement is considered met.
B. Respondent’s rights or legitimate interests

Policy Paragraph 4 (c) the Respondent in the following paragraph only if the domain name will have no rights or legitimate interests.

(i) Respondent’s domain name dispute before a notice to the provision of goods or services without the disputed domain name in bad faith or was used to prepare it for use, and there was a significant case,

(ii) the Respondent (individual, corporation or other entity as) though does have a trademark or service mark rights, even if the disputed domain name had been widely recognized in the general case, or

(iii) Respondent used the disputed domain name for commercial purposes, and to misleadingly divert consumers or dilute the problem sidoen trademarks or service marks of others without a legitimate noncommercial or fair use if you are using.

Once the applicant for the domain name, Respondent had no rights or legitimate interests alleged sufficient evidence, the (prima facie), For Respondent the disputed domain name to prove their rights and legitimate interests will be responsible for proof. If the Respondent fails to prove that the applicant Policy Paragraph 4 (a) (ii) the content will be considered. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455 Reference.

PREMIERE VISION Respondent to the Complainant’s trademark registration, or use no bar against the grant of any permission. Respondent is commonly known by the disputed domain name does not exist in any record that the Respondent registered the disputed domain name before Complainant’s trademark PREMIERE VISION from the applicant and to know the bar was not denying that. In addition, since the Respondent registered the disputed domain name, the objection raised by nine months the Respondent used the domain or a substantial ready to use, and that there was not any evidence. Respondent is currently in the disputed domain name to connect to any website is not just a passive only be owned by the disputed domain name only. View of these facts when the Respondent for the disputed domain name has no rights or legitimate interests can not have too. Archipelago Holdings LLC v. Creative Genius Domain Sales and Robert Aragon d / b / a / Creative Genius Domain Name Sales, WIPO Case No. D2001-0729 Reference. Therefore, the Respondent registered the disputed domain name and its provisions Article 4 (c) (i), (ii), (iii) is not applicable to everyone.

The administrative panel reviewed all the information on the general rights of the Complainant and the Respondent no legitimate interests hayeotdago watching enough evidence, therefore, disputes about the rights and legitimate interests in the domain name of the Respondent to prove that we believe are responsible. The Respondent did not submit a response to the disputed domain name also did not submit any claims. Josahaebon direct the Panel Bar, the Respondent registered the disputed domain name listed above provisions for Article 4 (c) the corresponding paragraph has rights or legitimate interests could not find any evidence.

Therefore the Panel that the Respondent regarding the disputed domain name has no rights or legitimate interests are not considered.
C. Respondent’s bad faith

Policy Paragraph 4 (a) (iii) in Section 2 that the Respondent registered the disputed domain name in bad faith and the applicant is responsible for proving hayeotdaneun. World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001; Shaw Industries Group, Inc. and Columbia Insurance Company v. DomainsByProxy, Inc. and Patti Casey, WIPO Case No. D2007-0555; Patrick Pawlicki v. The Plastiform Company, WIPO Case No. D2007-1206.

The applicant submitted that the Panel investigated and reviewed all the information analyzed According to Respondent “Premiere Vision” in the name of a legitimate non-commercial or commercial activities, you can not find any evidence that hayeotdaneun. In addition, the Respondent registered the disputed domain name when it was revealed fake all the listed contacts for the Panel was that the Respondent is trying to hide the identity of the person intentionally false contact information listed to be considered. PREMIERE VISION trademark of the Complainant’s famous castle not considering the disputed domain names Respondent could legitimately use and can not find any evidence. In addition, the Respondent registered the disputed domain names are registered trademarks of the applicant at the time did not know about that estimate can not find a reason to do. Therefore the Panel that the Respondent registered the disputed domain name in bad faith and believe is being used.

This domain name is registered a substantial period of time without having to use if you are just passively boyuman the domain name in bad faith “use” recognized as one example Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 Can be found at. Telstra The case of the panel to consider the following circumstances the disputed domain name when Respondent is passively boyuman hayeotdeorado Respondent’s use of the domain name in bad faith could have acted had assumed.

(i) other countries including Australia, is widely used in the Complainant’s trademark applicants are seen as a very strong brand recognition and has prominent.

(ii) The Respondent used the disputed domain name was actually in good faith, or those planning to present any evidence that did not hayeotdaneun.

(iii) the Respondent concealed the identity of the person to an unregistered trade name used.

(iv) Respondent intentionally provided false contact them since not only did not correct it is violation of terms of registration.

(v) Considering all these facts, the respondent was someone else’s brand, representing their own to commit fraud or a violation of consumer rights law, or infringe the rights of the applicant under trademark law and commit illegal acts The disputed domain name without actually using or planning to use such that it is impossible expectations.

The Administrative Panel of the Respondent’s passive holding of the disputed domain name in bad faith can be used to agree. Polaroid Corporation v. Jay Strommen, WIPO Case No. D2005-1005; The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340 Reference.

The Administrative Panel submitted the applicant’s claim and the fact that all the information the applicant accepts the provisions Article 4 (a) (iii) as required in Section Respondent registered the disputed domain name in bad faith and are available for use enough to be considered proven.
7. Determined

The foregoing reasons, the Panel rules that Article 4 (i) This Section and Section 15 of the Rules, the applicant’s request to transfer the applicant to determine the .

Andrew J. Park
Sole Panelist

Date: January 27, 2010

The Complainant is Exotiq Properties Ltd. of Bali, Indonesia, represented by Cabinet Vidon – Marques & Juridique PI Dpt, France.

The Respondent is David Smart of Bristol, United Kingdom of Great Britain and Northern Ireland, represented by Traverse Legal, PLC, United States of America.
2. The Domain Name and Registrar

The disputed domain name is registered with GoDaddy.com, Inc.
3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2009. On December 11, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On December 11, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 December 15, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 7, 2010. The Response was filed with the Center on January 7, 2010.

The Center appointed Michael J. Spence as the sole panelist in this matter on January 19, 2010. 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 Complainant operates websites associated with its business as a real estate broker. It has seven existing trade mark registrations including the word EXOTIQ and several pending. All of these include a device as well as the word EXOTIQ and several, except for an Indonesian registration and a Community Trade Mark (“CTM) on the trademark register of the Office for Harmonization of the Internal Market (OHIM), registration No. 004284444, registered February 23, 2006, post-date the registration of the disputed domain name. The Respondent operates a group of websites with domain names built around the word “naked” that generate affiliate revenue. In 2007, he registered the disputed domain name with the intention of creating a group of sites to generate affiliate revenue around the word “exotiq”. His stated intention is that these sites should operate in the fields of property, sex and gambling.
5. Parties’ Contentions
A. Complainant

The Complainant claims that the disputed domain name is identical or confusingly similar with its marks; that the Respondent has no rights or legitimate interests in the disputed domain name; that the Respondent must at the time of registration have known of the Complainant’s marks; that his registration of the disputed domain name was therefore in bad faith; and that this is further evinced by his willingness to sell the disputed domain name to the Complainant.
B. Respondent

The Respondent argues that the Complainant’s marks all include material in addition to the word EXOTIQ and that the word itself, as descriptive, is not something in which the Complainant has any existing rights; that he has been preparing to establish a group of sites to generate affiliate revenue around the word “exotiq” for approximately two years and that he therefore has a legitimate interest in the use of the disputed domain name; that his registration of the disputed domain name pre-dates the registration of the Complainant’s marks; that he was unaware of the Complainant’s business at the time of registering the disputed domain name and that his registration cannot therefore have been in bad faith; and that his offer to sell the disputed domain name came only in response to an offer to purchase made by the Complainant and that it cannot therefore be taken as evidence of an intention to trade in an identical or confusingly similar mark.
6. Discussion and Findings
A. Identical or Confusingly Similar

Noting that the word “exotiq” can be regarded as a phonetic rendering of the common dictionary word “exotic”, this Panel would expect that such a term would require considerable evidence of secondary meaning in order, without more, to become registrable as a trade mark, or indeed to be recognized as an unregistered trademark for the purpose of proceedings under the Policy. The Complainant has not presented any such evidence of secondary meaning in the relevant market in relation to the term “exotiq” in these Policy proceedings. The Complainant has however presented evidence of possessing trademark registrations for EXOTIQ (e.g., CTM registration No. 004284444 and Indonesian registration No. Bor.25146), which contain a figurative element (a flower appears to the left of the term “exotiq”. Accordingly, a question may arise as to whether these figurative marks (which do not seem to indicate disclaimers for the term “exotiq”) may satisfy the requirement that the Complainant show it has the relevant trademark rights for the term “exotiq,” apart from the graphic element. See e.g. Ville de Paris v. Salient Properties LLC, WIPO Case No. D2009-1279, and Minibar North America Inc. v. Ian Musk & GEMS Global Electronic Minibar Systems AS, WIPO Case No. D2005-0035.

However, in light of the Panel’s finding under the second element, it is unnecessary for this Panel to consider that question further here or to make a determination of whether “exotiq” a sufficiently distinctive or dominant element of the Complainant’s figurative mark such as to ground a finding whether the Complainant has trademark rights in the relevant term for the purposes of the present Policy proceedings.
B. Rights or Legitimate Interests

It is for the Complainant to establish, at least prima facie that the Respondent has no rights or legitimate interests in the disputed domain name (Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110). Where a disputed domain name corresponds to a less distinctive mark or group of marks, this burden tends to be higher than it might otherwise be. Although each case must be assessed on its own merits and evidence, in general it is inherently more likely that a respondent may have a legitimate interest in using a more descriptive domain name. Given the phonetically descriptive nature of the term “exotiq”, the Respondent’s evidence that it has indeed registered several other domain names containing the term “exotiq” (seemingly in combination with other descriptive terms such as “exotiqgirls”, “exotiqgirls”, “exotiqrentals.” the relatively scant evidence of distinctiveness provided by the Complainant, and the Respondent’s prima facie plausible claim to a legitimate interest in the use of the name, the Panel finds that the Complainant has not discharged its burden to establish that the Respondent has no rights or legitimate interests in the disputed domain name.

As further support for the Panel’s finding, the Panel also notes the record includes an Office Action from the United States Patent and Trademark Office apparently sent to the Complainant in August of 2009 citing the refusal to register “exotiq” on the basis that it “merely identifies a characteristics or feature of applicant’s identified goods” and setting a six-month deadline for the Complainant to respond before the application is abandoned. In this light, the Panel finds the Respondent’s arguments as to the descriptive nature of the term “exotiq” to be plausible and in the circumstances finds that the Complainant has on balance failed in showing that the Respondent could rely on no legitimate interest related to the inclusion of the term “exotiq” in the disputed domain name.

In making this finding, the Panel does not necessarily exclude the possibility that the UK-based Respondent may have been aware of the Respondent’s property business and its CTM registered mark EXOTIQ, but on balance the Panel finds it more likely than not on the provided recorded that the disputed domain name was registered for its descriptive rather than its trademark value.

The Panel therefore finds, on balance, that the Complainant has not established the second element of paragraph 4(a) of the UDRP Policy.
C. Registered and Used in Bad Faith

Given the Panel’s findings on the second element of paragraph 4(a) of the UDRP Policy, it is unnecessary to consider the issue of bad faith.
7. Decision

For all the foregoing reasons, the Complaint is denied.

Michael J. Spence
Sole Panelist

Dated: January 25, 2010

Dear Counsel,
My Name is Hajime Bada, President & CEO of  JFE Steel Corporation. JFE Steel Corporation is a steel & chemical trading company. My Company currently has a claim against an American/Canada and European company for a breach of contract.

We wish to retain an attorney that will assist us in collecting funds owed to us by a deliquent Customer within your jurisdiction. We are of the opinion that once our presence is established in your state via a legal representative, our customer will have no option but comply with payment request to avoid legal action and litigation. We have all the documents supporting the case and we are ready to present it if we happen to go before the court of law to settle this matter. Please advice on your fees and retainer agreement and any other information that you would need to take on this case.
Thank you and I await your prompt response
Hajime Bada,
JFE Steel Corporation.
No. 2-2-3 Uchisaiwaicho, Chiyoda-Ku,
Tokyo, Japen.
Phone: 81-3458-01740

So if you’re an attorney, business is down, and you get an email like this don’t get the urge to respond. It’s nothing but a targeted scam.

I’ve tracked a few of these emails back to computers in the U.S. which are surely hacked from somewhere in China, one of the former eastern block countries (who by the way treat hacking the same as a law abiding profession), and or somewhere in south America.

Facebook response times have consistently been significantly better than Twitter. Facebook usually responds to DomainNameAttorney.com requests within one day. This is fantastic considering the volume of infringement notices they receive. Twitter is slower than Facebook but that is to be expected with their fast growth.

One of the key issues to be taken up by ICANN’s board at this week’s gathering is whether to allow for the first time entire Internet addresses to be in scripts that are not based on Latin letters. That could potentially open up the Web to more people around the world as addresses could be in characters as diverse as Arabic, Korean, Japanese, Greek, Hindi and Cyrillic — in which Russian is written.

Technically it’s also very difficult. “This is the biggest change technically to the Internet since it was invented 40 years ago,” Peter Dengate Thrush, chairman of the ICANN board, told reporters, calling it a “fantastically complicated technical feature.” He said he expects the board to grant approval on Friday, the conference’s final day.

If you have questions about a domain name sale or purchase feel free to contact us to inquire about representation.

Loma Linda University Adventist Health Sciences Center, a United States non-profit organization filed a UDRP complaint against JM Xtrade, Inc regarding the domain names <lomalinda.org> and <lomalinda.net> (the “Domain Names”). The domain names are clearly generic and refer to a very well known geographic location in California and at least a dozen mexican restaurants that I know of personally that use the Loma Linda as their identifing mark. By the way, the seafood enchilidas at the Loma Linda in the south lower highlands area of Denver are great! A little spicy but great flavor.

Respondent (the guy that owned the domain names) made one mistake. He had links and other information related to the Loma Linda hospitals. That’s the only nugget that the arbiter could hold onto in order to justify transfering the domain names to the hospital. If the individual would have just had information on the town Loma Linda then there is no way the domain names get hijacked. An unfornate situation for the owner of the domain names.

What is a little weird is that Loma Linda hospitals didn’t even file for federal trademarks. They relied on their common law rights.

Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2009. On January 21, 2009, the Center transmitted by email to Go Daddy a request for registrar verification in connection with the domain name at issue. On January 21, 2009, Go Daddy transmitted by email to the Center its verification response and provided the contact details for the Respondent and confirmed that the Respondent is listed as the Registrant. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 26, 2009. The Center verified that the Complaint together with the amendment to 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 2, 2009. In accordance with the Rules, paragraph 5(a), the due date for a response was February 22, 2009. The Response was filed with the Center on February 15, 2009.

The Center appointed Charné Le Roux as the sole panelist in this matter on February 24, 2009. 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.

Factual Background

The Complainant is a Belgium corporation and owner of the trade mark EDDY MERCKX. The Complainant provided evidence of an International registration for the trade mark dated December 7, 1981 and December 27, 1972. It also provided evidence of the registration of the trade mark in Benelux on June 16, 1981 and a Community Trade Mark registration dated January 9, 2007.

The Complainant has used the EDDY MERCKX trade mark for over 27 years in connection with various goods but bicycles in particular. It is the owner of the domain name <eddymerckx.be>. EDDY MERCKX refers to a famous cyclist i.e. Mr. Eddy Merckx. The trade mark appears to be very widely known as supported by the results of a Google search for EDDY MERCKX provided by the Complainant.

The owner of the Disputed Domain Name is Irfan Khalil. The Disputed Domain Name was registered on March 23, 2000. The website attached to the Disputed Domain Name appears to be a parking page.

Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith.

While there is Respondent’s claim that the sponsored and other links are for non- competing items, the Respondent also denies that the parking site was connected to the said website with his knowledge. Previous panels have on numerous occasions found that respondents are ultimately responsible for automatically generated content on their disputed domain names. See, e.g., Grundfos A/S v. Texas International Property Associates, WIPO Case No. D2007-1448, NVT Birmingham, LLC d/b/a CBS 42 WIAT-TV v. ZJ, WIPO Case No. D2007-1079 and Grisoft, s.r.o. v. Original Web Ventures Inc., WIPO Case No. D2006-1381. Even if the Panel would accept the Respondent’s lack of knowledge of and responsibility for the parking page, then the alternative would be that the Respondent is passively holding the Disputed Domain Name. Previous panels have not hesitated to hold that the lack of active use of a disputed domain name or the use of the disputed domain name as a parking site, coupled with factors which include that the trade mark is well known, may constitute bad faith.

While the Panel is not prepared to find that the Respondent in this matter has deliberately concealed his identity or that it is impossible to conceive a circumstance in which good faith use could be made of the Disputed Domain Name for example as a fan site, the Respondent’s inactive use of the Disputed Domain Name, which is identical to a well known trade mark, for 9 years, have persuaded the Panel that the requirements of paragraph 4(b) of the Policy have been met.

It is necessary to comment on the Respondent’s contention that the Complainant has lost its rights to claim the Disputed Domain Name under a doctrine of laches. In a similar case involving the domain name <tomcruise.com> (Tom Cruise v. Network Operations Centre/Alberta Hod Rods, WIPO Case No. D2006-0560), the complainant had taken 10 years to file a complaint in connection with the domain name. A three member panel held that there is no meaningful precedent under the Policy for refusing to enforce trade mark rights on the basis of a delay in bringing a claim, and a transfer was ordered. In that case, as is the case here, the Respondent also made no argument that he has or will suffer injury because of the Complainant’s delay in initiating this proceeding. The Respondent has made no claim that he has invested any monies towards his EDDY MERCKX website. The Complainant has also not provided any firm indication, express or tacit, in connection with any consent that it may have provided to the Respondent to use its trade mark in the Disputed Domain Name. In these circumstances, the Panel is not prepared to find that the delay of the Complainant constitutes a bar against its cause of action.

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ADMINISTRATIVE PANEL DECISION

Margaret C. Whitman v. Domains For Sale

Case No. D2008-1534

1. The Parties

The Complainant is Margaret C. Whitman, of San Jose, California, United States of America, represented by Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America.

The Respondent is Domains For Sale, of Santa Monica, California, United States of America.[1]

2. The Domain Names and Registrar

The disputed domain names <megwhitmanforgovernor.com>, <megwhitman2010.com>, <meg2010.com>, <whitmanforgovernor.com>, and <whitman2010.com> are registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 7, 2008. On October 8, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain names at issue. On October 8, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 October 15, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was

November 4, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 5, 2008.

The Center appointed William R. Towns as the sole panelist in this matter on November 17, 2008. 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 Complainant served as the President and CEO of eBay, Inc. (“eBay”) from March 1998 through March 2008, and remains on eBay’s Board of Directors and is a stockholder. During the Complainant’s tenure, eBay grew from a small online auction website with approximately 30 employees and revenues of USD4 million to a publicly traded company valued at approximately USD46 billion, with over 15,000 employees worldwide and more than 248 million registered users. Prior to joining eBay, the Complainant had nearly 20 years of experience managing brands such as Hasbro, Playskool, FTD, StrideRight, Keds, and Disney.

During her tenure with eBay, the Complainant received a number of awards and accolades relating to her professional and business accomplishments at eBay. The Complainant has made numerous speeches, presentations and public appearances to promote eBay, and she has been featured on television and in numerous publications including The New York Times, The Washington Post, the San Francisco Chronicle, San Jose Mercury News, The Wall Street Journal, The Boston Globe, and Newsweek. The Complainant conducted several Google searches for “Meg Whitman” – with and without eBay – which returned more than 400,000 references to the Complainant.

The Respondent registered the disputed domain names between January 28 and March 28, 2008, at which time there was widespread speculation in California and elsewhere that the Complainant would run for election as Governor of California in 2010. According to the concerned registrar’s WhoIs records, the Respondent is located in Santa Monica, California, United States of America (“United States” or “U.S.”) at a physical address shared with Thomas Hall, identified as the administrative contact for the disputed domain names in the relevant WhoIs records. Mr. Hall is a self-described political and campaign consultant.

This disputed domain names currently are being used in connection with what appear to be pay-per-click websites, which in addition to providing advertising links, also indicate that the domain names are for sale.

5. Parties’ Contentions

A. Complainant

The Complainant is described in the Complaint as an Internet pioneer and businessperson whose name is internationally famous and synonymous with the accomplishments of eBay. Relying primarily on Chung, Mong Koo and Hyundai Motor Company v. Individual, WIPO Case No. D2005-1068, the Complainant claims common law service mark rights in her personal name MEG WHITMAN “as evidenced by her fame and achievement, the international recognition and wide publicizing of her fame and achievement, and that Complainant’s fame and achievement are inextricably connected to eBay’s commercial success.”

The Complainant maintains that the disputed domain names are confusingly similar to her name. According to the Complainant, the Respondent lacks rights or legitimate interests in the disputed domain names, as the Respondent has never been commonly known by the disputed domain names, which the Complainant the Respondent registered in an attempt to exploit and profit from the Complainant’s trademark rights, both by offering the disputed domain names for sale and by using them in connection with pay-per-click landing sites that include paid advertising relating to eBay and to politics.

According to the Complainant, the foregoing is also evidence of the Respondent’s bad faith registration and use of the disputed domain names. The Complainant argues that the Respondent’s registration of multiple domain names incorporating the Complainant’s mark further establishes a bad faith pattern of registering domain names under paragraph 4(b)(ii) of the Policy, which is further reflected by the Respondent’s registration of numerous domain names appropriating third-party trademarks for use with pay-per-click landing sites.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Scope of the Policy

The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store, WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber‑Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187. See Final Report of the WIPO Internet Domain Name Process, paragraphs 169 and 170.

Paragraph 15(a) of the Rules provides that the Panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.

Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:

(i) The domain name registered by the Respondent 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 with respect to the domain name; and

(iii) The domain name has been registered and is being used in bad faith.

Cancellation or transfer of the domain name is the sole remedy provided to the Complainant under the Policy, as set forth in paragraph 4(i).

Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.

Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in the domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.

B. Identical or Confusingly Similar

The Panel initially addresses the question of whether the Complainant has established common law trademark or service mark rights in her personal name, Meg Whitman.[2] As noted by the Panel in Israel Harold Asper v. Communication X Inc., WIPO Case No. D2001‑0540, in cases involving entertainers, authors, professional athletes and to a lesser extent business persons, complainants have been found to have common law marks in their names in circumstances where the name has been used as a marketable commodity, for a fee to promote another’s goods or services, or for direct commercial purposes in the marketing of the complainant’s own goods or services. See, e.g., Freddy Adu v. Frank Fushille, WIPO Case No. D2004‑0682; David Gilmour, David Gilmour Music Limited and David Gilmour Music Overseas Limited v. Ermanno Cenicolla, WIPO Case No. D2000‑1459; Julia Fiona Roberts v. Russell Boyd, WIPO Case No. D2000‑0210; Jeanette Winterson v. Mark Hogarth, WIPO Case No. D2000‑0235; Monty and Pat Roberts, Inc. v. Bill Keith, WIPO Case No. D2000‑0299; Steven Rattner v. BuyThisDomainName (John Pepin), WIPO Case No. D2000‑0402; Daniel C. Marino, Jr. v. Video Images Productions, et al., WIPO Case No. D2000‑0598; Isabelle Adjani v. Second Orbit Communications, Inc., WIPO Case No. D2000‑0867; Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000‑0847; Nik Carter v. The Afternoon Fiasco, WIPO Case No. D2000‑0658.

Merely having a “famous” name is not sufficient to establish common law trademark or service mark rights in the name. The Policy itself inherently makes a distinction between the protection afforded trademark rights and rights arising under the law of publicity which has been discussed in further details in several UDRP cases. See Israel Harold Asper v. Communication X Inc., WIPO Case No. D2001‑0540. Under the law of publicity, as recognized in virtually all United States jurisdictions, well known individuals have the right to control commercial exploitation of their names and likenesses. See Bi‑Rite Enterprises, Inc., Et Al. V. Bruce Miner Company, Inc., Et Al., 757 F.2d 440 ( 1^st Cir. 1985). To be entitled to protection under the Policy, however, a personal name must function as a trademark, and for common law trademark rights to exist, the Complainant’s personal name must have come to be recognized by the public as a symbol which identifies particular goods or services with a single source.[3]

In asserting common law service mark rights in her personal name, the Complainant appears to rely mainly on activities performed while she was President and CEO of eBay between 1998 and 2008, and as a shareholder and Director of eBay. Indeed, the Complainant expressly asserts common law service mark rights in her personal name based on “her fame and achievement, the international recognition and wide publicizing of her fame and achievement, and [recognition] that Complainant’s fame and achievement are inextricably connected to eBay’s commercial success.”

As noted above, however, fame alone is not sufficient to establish common law trademark or service mark rights in a personal name. Rather, the Complainant’s personal name must be used such that a relevant segment of the public comes to recognize her name as a symbol that distinguishes her services from those of similarly situated service providers. United States’ judicial decisions have broadly defined a “service” for purposes of U.S. trademark law as involving “the performance of labor for the benefit of another.” Morningside Group Ltd. v. Morningside Capital Grp., L.L.C., 182 F.3d 133, 138 (2d Cir.1999). See also In re Canadian Pacific Ltd., 754 F.2d 992, 994 (Fed.Cir.1985). The prevailing judicial view is that the activity need not be “solely for the benefit of the performer” – in other words, it is sufficient to show that the activity “did provide valuable benefits to others.” Morningside, supra. See also Murphy v. Provident Mutual Life Ins. Co., 923 F.2d 923, 927 (2d Cir.1990).

Nevertheless, since the fundamental objective of trademark law is the protection of “the goodwill established in the minds of the relevant buying public”, whether a service is provided for the benefit of “another” turns on whether the service recipients constitute “a segment of the public which purchases and benefits from a service provided by the owner of the mark.” In re Canadian Pacific, supra. In that respect, the In re Canadian Pacific court commented that shareholders cannot be considered “other” than the corporation or part of the relevant “public,” because they are “in fact and in law” a corporation’s “owners,” and because “all together they are” the corporation.

Thus, consistent with the fundamental principles underlying United States trademark law, an activity may be recognized as a “service” only where such activity involves the performance of labor which provides a valuable benefit to another person or entity who is part of the relevant buying public. See Huthwaite, Inc. v. Sunrise Assisted Living, Inc., 261 F.Supp.2d 502 (E.D. Va. 2003). Applying this construct to the particular circumstances of this case, the Panel is unable to conclude that the Complainant has provided services under the name “Meg Whiteman” as a source-indicator to a segment of the relevant buying public based on her performance as President and CEO of eBay. Even if, contrary to the teachings of In re Canadian Pacific, supra, the Panel were to consider eBay as part of the relevant buying public respecting the services claimed by the Complainant, there is insufficient evidence in the record to demonstrate that the Complainant’s personal name has acquired secondary meaning in the public’s mind sufficient to distinguish her services from those of similarly situated service providers.

The Panel does not believe that the decision in Chung, Mong Koo and Hyundai Motor Company v. Individual, WIPO Case No. D2005-1068, relied on by the Complainant, requires a different result in the context of this case. The distinguished panel in Chung, Mong Koo relied largely upon Monty and Pat Roberts, Inc. v. J. Bartell, WIPO Case No. D2000-0300, and Steven Rattner v. BuyThisDomainName (John Pepin), WIPO Case No. D2000-0402, in determining that Hyundai’s founder, Chung, Mong Koo, had acquired common law service mark rights in his personal name. In Monty and Pat Roberts, Inc., supra, the Complainant’s founder, Monty Roberts, was held to have common law service mark rights in his personal name because the services in question had been provided under his name. Similarly, in Steven Rattner, supra, it was determined that the Complainant had common law service mark rights in his personal name based on investment banking and corporate advisory services actually provided under his name. Unlike the complainants in Monty and Pat Roberts, Inc., and Steven Rattner, supra, the Complainant here has presented no evidence of the actual use of her name as a source indicator in connection with the services she is claiming.

Accordingly, the Panel concludes in the circumstances of this case that the Complainant has failed on the record before this Panel to demonstrate common law service mark rights in her personal name. Accordingly, the Panel finds that the Complainant has in this case failed to satisfy the requirements of paragraph 4(a)(i) of the Policy. Because the Complainant bears the burden of proving each of the elements under paragraph 4(a) of the Policy, it is unnecessary for the Panel to consider the Complainant’s arguments under paragraphs 4(a)(ii) and 4(a)(iii) for purposes of its decision.

7. Decision

For all the foregoing reasons, the Complaint is denied.

William R. Towns

Sole Panelist

Dated: December 1, 2008