Jill Holtzman Vogel v. Domain Drop S.A.
Claim Number: FA0802001153965
Complainant is Jill Holtzman Vogel (“Complainant”), represented by Jason
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <jillholtzmanvogel.com>, registered with Capitoldomains, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
\James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 27, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 28, 2008.
On February 28, 2008, Capitoldomains, LLC confirmed by e-mail to the National Arbitration Forum that the <jillholtzmanvogel.com> domain name is registered with Capitoldomains, LLC and that Respondent is the current registrant of the name. Capitoldomains, LLC has verified that Respondent is bound by the Capitoldomains, LLC 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 March 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 3, 2008 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@jillholtzmanvogel.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 10, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <jillholtzmanvogel.com> domain name is identical to Complainant’s JILL HOLTZMAN VOGEL mark.
2. Respondent does not have any rights or legitimate interests in the <jillholtzmanvogel.com> domain name.
3. Respondent registered and used the <jillholtzmanvogel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Jill Holtzman Vogel, is an attorney and member
of the Virginia State Senate.
Complainant has used her JILL HOLTZMAN VOGEL mark in conjunction with
her work as an attorney in the field of campaign finance, election and
government ethics law and in her role as state senator. In addition, she has been involved in
politics on the national level and in February 2004 was named Chief Counsel of
the Republican National Committee. In
2001 she also served as Deputy Counsel at the Department of Energy. Complainant also was visibly involved in the
2000 presidential vote recount in
Respondent registered its <jillholtzmanvogel.com> domain name on May 1, 2007. Respondent’s disputed domain name does not resolve to an active website.
Paragraph 15(a) of 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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Complainant has not registered her JILL HOLTZMAN VOGEL
mark. The Panel finds registration of a
mark is unnecessary in order to establish rights in a mark pursuant to Policy ¶
4(a)(i), so long as Complainant can establish common
law rights in her JILL HOLTZMAN VOGEL mark.
See
Complainant has used her JILL HOLTZMAN VOGEL mark in
connection with her work as an attorney and as a political figure over at least
the past 8 years. Complainant has held
state and national political positions and has specialized in the field of
campaign finance, election, and government ethics law. Complainant’s use of her name in connection
with her business and political activities is sufficient to establish her
rights in the JILL HOLTZMAN VOGEL mark pursuant to Policy ¶ 4(a)(i). See Estate
of Tupac Shakur v. Shakur Info Page, AF-0346 (eResolution Sept. 28, 2000)
(“A person may acquire such a reputation in his or her own name as to give rise
to trademark rights in that name at common law …”); see also 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).
Respondent’s <jillholtzmanvogel.com> domain name
incorporates Complainant’s entire JILL HOLTZMAN VOGEL mark with the removal of
the spaces and the addition of the generic top-level domain “.com.” The removal of spaces and addition of a gTLD
is considered irrelevant when determining whether a disputed domain name is
identical to a mark because spaces are not permitted in a domain name and a gTLD
is required in a domain name. Therefore,
the Panel finds Respondent’s <jillholtzmanvogel.com>
domain name is identical to Complainant’s JILL HOLTZMAN VOGEL mark pursuant to
Policy ¶ 4(a)(i).
See
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or
legitimate interests in the disputed domain name. Complainant is required to produce a prima facie case in support of its
allegations and then the burden shifts to Respondent to prove it possesses
rights or legitimate interests in the disputed domain name. The Panel finds Complainant has adequately
established a prima facie case. Due to Respondent’s failure to respond to
these proceedings, the Panel may assume Respondent does not possess rights or
legitimate interests in the disputed domain name. The Panel, however, will examine the record
to determine whether Respondent possesses rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c).
See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s
Submission constitutes a prima facie case under the Policy, the burden
effectively shifts to Respondent. Respondent’s failure to respond means that
Respondent has not presented any circumstances that would promote its rights or
legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am.
Express Co. v. Fang Suhendro, FA 129120
(Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's
failure to respond, it is presumed that Respondent lacks all rights and
legitimate interests in the disputed domain name.”).
Respondent has failed to activate a website under its <jillholtzmanvogel.com> domain
name. The Panel finds Respondent’s
failure to make an active use of the <jillholtzmanvogel.com>
domain name is not a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Pharmacia & Upjohn AB v. Romero,
D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests
where the respondent failed to submit a response to the complaint and had made
no use of the domain name in question); see
also Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) (finding
respondent's failure to make an active use of the <aolfact.com> domain
name for over six months is evidence respondent lacks rights and legitimate
interests in the disputed domain name).
Respondent does not appear to be commonly known by the <jillholtzmanvogel.com> domain name. The WHOIS information lists Respondent as “Domain Drop S.A.” and the record indicates Complainant has not authorized Respondent to use her JILL HOLTZMAN VOGEL mark. Therefore the Panel finds Respondent is not commonly known by the <jillholtzmanvogel.com> domain name pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <jillholtzmanvogel.com> domain name does not resolve to an active website. The Panel finds Respondent’s failure to make an active use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s failure to make an active use of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <jillholtzmanvogel.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: April 24, 2008
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