Mary L. Cummings v. V7 Productions
Claim Number: FA0808001221136
Complainant is Mary L. Cummings (“Complainant”), represented by Lawrence
R Robins, of Finnegan,
REGISTRAR
The domain name at issue is <missycummings.com>, registered with Innerwise, Inc. d/b/a Itsyourdomain.com.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 26, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 15, 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@missycummings.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <missycummings.com> domain name is identical to Complainant’s MISSY CUMMINGS mark.
2. Respondent does not have any rights or legitimate interests in the <missycummings.com> domain name.
3. Respondent registered and used the <missycummings.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mary Cummings, was one of the first United States Navy’s female fighter pilots after the combat law was repealed in 1993. Complainant is known publicly and professionally as MISSY CUMMINGS. Complainant served as a naval officer and military pilot for eleven years. Complainant published a book under her MISSY CUMMINGS mark in 2000, chronicling her experiences as one of the first female fighter pilots. Additionally, Complainant has published over 80 journal articles, conference papers, book chapters, and magazine articles under her MISSY CUMMINGS mark. Complainant has also performed at numerous paid speaking engagements under her MISSY CUMMINGS mark. Complainant has been featured by multiple national and local media outlets.
Respondent registered the disputed domain name on
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 MISSY CUMMINGS mark,
however, the Panel finds registration of a mark is not necessary for the
purposes of Policy ¶ 4(a)(i), so long as Complainant
can establish common law rights in her mark.
See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13,
2000) (finding that the Rules do not require that the complainant's trademark
or service mark be registered by a government authority or agency for such
rights to exist); see also Great Plains Metromall, LLC v. Creach,
FA 97044 (Nat. Arb. Forum
Complainant has used her MISSY CUMMINGS mark in commerce since at least 2000 when she published a book detailing her experiences as one of the first female fighter pilots. Since then, Complainant has performed at numerous paid speaking engagements and published multiple journal and magazine articles. Furthermore, Complainant has been featured by national and local news media outlets under her MISSY CUMMINGS mark. The Panel finds Complainant’s long and continuous use of her MISSY CUMMINGS mark has sufficiently evidenced her rights in that 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 Sade v. Quantum Computer Servs., Inc., D2000-0794 (WIPO Sept. 26, 2000) (finding that although the complainant did not register the word “SADE” either as a trademark or as a service mark the complainant adapted the word “SADE” as the complainant’s stage-name and as a trademark and service mark and therefore the complainant established that it had common law rights in the mark).
Respondent’s disputed domain name fully contains
Complainant’s MISSY CUMMINGS mark with the deletion of the space between the
words and the addition of the generic top-level domain “.com.” The Panel finds these alterations are
immaterial when undertaking a Policy ¶ 4(a)(i) analysis. Thus, the Panel finds Respondent’s disputed
domain name is identical to Complainant’s MISSY CUMMINGS mark pursuant to
Policy ¶ 4(a)(i).
See Albrecht v. Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000)
(finding the respondent’s domain name, <karlalbrecht.com>, identical to
the complainant’s common law mark); see
also
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. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove otherwise. The Panel finds Complainant has established a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume Respondent does not have rights or legitimate interests in the disputed domain name. The Panel, however, will examine the record to determine whether Respondent has rights or legitimate interests 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 Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Complainant alleges Respondent is not commonly known by the
disputed domain name. The WHOIS
information lists Respondent as “Tucows, Inc.,” and Complainant contends she
has not authorized Respondent to use her MISSY CUMMINGS mark. Therefore, the Panel finds Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information
implies that Respondent is ‘commonly known by’ the disputed domain name” as one
factor in determining that Policy ¶ 4(c)(ii) does not
apply); see
also Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the
respondent does not have rights in a domain name when the respondent is not
known by the mark).
Respondent’s disputed domain name resolves to a website that displays advertisements for and links to adult-oriented websites. The Panel finds Respondent’s use of the disputed 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 Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user); see also WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy).
The Panel finds Respondent’s use of the disputed domain name to advertise and link to adult-oriented content does not confer rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Paws, Inc. v. Zuccarini, FA 125368 (Nat. Arb. Forum Nov. 15, 2002) (holding that the use of a domain name that is confusingly similar to an established mark to divert Internet users to an adult-oriented website “tarnishes Complainant’s mark and does not evidence noncommercial or fair use of the domain name by a respondent”); see also America Online, Inc. v. Bates, FA 192595 (Nat. Arb. Forum Oct. 7, 2003) (“Attempts to commercially benefit from a domain name that is confusingly similar to another's mark by linking the domain name to an adult-oriented website [is] evidence that the registrant lacks rights or legitimate interests in the domain name.”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent presumably receives compensation in return for its use of the disputed domain name to display advertisements for and links to adult-oriented websites. The Panel finds Respondent is attempting to profit by creating confusion among Internet users as to Complainant’s affiliation with the disputed domain name. Thus, the Panel finds Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See American Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Nat. Arb. Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”).
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 <missycummings.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: October 7, 2008
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