Christine Ellen Hynde a/k/a Chrissie Hynde v. LOVEARTH.net
Claim Number: FA0809001223929
Complainant is Christine Ellen Hynde a/k/a Chrissie
Hynde (“Complainant”), represented by
Stephen J. Strauss, of Fulwider Patton LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <chrissiehynde.com> and <chrissie-hynde.com>, registered with Network Solutions, Inc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 9, 2008; the National Arbitration Forum received a hard copy of the Complaint on September 11, 2008.
On September 10, 2008, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <chrissiehynde.com> and <chrissie-hynde.com> domain names are registered with Network Solutions, Inc. and that Respondent is the current registrant of the names. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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 15, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 6, 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@chrissiehynde.com and postmaster@chrissie-hynde.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 14, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <chrissiehynde.com> and <chrissie-hynde.com> domain names are identical to Complainant’s CHRISSIE HYNDE mark.
2. Respondent does not have any rights or legitimate interests in the <chrissiehynde.com> and <chrissie-hynde.com> domain names.
3. Respondent registered and used the <chrissiehynde.com> and <chrissie-hynde.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Christine Ellen Hynde a/k/a Chrissie Hynde, is an internationally famous singer-songwriter who performs under the distinctive stage name CHRISSIE HYNDE. Complainant is the lead singer of the internationally famous band The Pretenders which has produced several hit singles and albums over the years. Complainant has performed all over the world under the name “Chrissie Hynde;” is a member of the Rock and Roll Hall of Fame; and has collaborated with several musicians over the years including UB40, Eric Clapton, and Frank Sinatra.
Respondent registered the <chrissiehynde.com> and <chrissie-hynde.com> domain names on July 10, 1999. Respondent’s disputed domain names resolve to a website featuring links to several commercial websites containing information and products related to celebrities.
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 does not own a trademark registration in the CHRISSIE HYNDE mark. However, the Panel finds that a trademark registration may not be necessary to establish rights in a mark under Policy ¶ 4(a)(i). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”).
Complainant asserts common law rights in the CHRISSIE HYNDE mark through long-standing and continuous use. Complainant is an internationally famous singer-songwriter who performs under the distinctive stage name CHRISSIE HYNDE. Complainant is a member of the Rock and Roll Hall of Fame and has collaborated with several musicians over the years including UB40, Eric Clapton, and Frank Sinatra. The Panel finds that Complainant has established secondary meaning in the CHRISSIE HYNDE mark, which leads to the conclusion that Complainant has rights in the mark under Policy ¶ 4(a)(i). See 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); see also Jagger v. Hammerton, FA 95261 (Nat. Arb. Forum Sept. 11, 2000) (the complainant held common law trademark rights in his famous name MICK JAGGER).
Complainant further contends that Respondent’s <chrissiehynde.com> and <chrissie-hynde.com>
domain names are identical to Complainant’s CHRISSIE HYNDE common law
mark. Respondent’s disputed domain names
each contain Complainant’s mark in its entirety and adds the generic top-level
domain “.com.” Moreover, Complainant’s <chrissiehynde.com> domain name omits the space
sepearting the two terms of Complainant’s mark while Respondent’s <chrissie-hynde.com>
domain name replaces the space with a hyphen.
The Panel finds that these distinctions are irrelevant under Policy ¶
4(a)(i) and fail to differentiate the domain names
from Complainant’s mark. See
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <chrissiehynde.com> and <chrissie-hynde.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant contends that Respondent, identified in the WHOIS records as “LOVEARTH.net,” is not commonly known by the <chrissiehynde.com> and <chrissie-hynde.com> domain names. There is no other evidence in the record indicating that Respondent may be commonly known by the disputed domain names. The Panel therefore concludes that Respondent lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip’t as the registrant of the disputed domain name and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent
is using the <chrissiehynde.com> and <chrissie-hynde.com>
domain names for a pay-per-click site. Respondent likely profits from each Internet user who clicks on one
of the advertised links. The fact that these links are
unrelated to Complainant is immaterial; Respondent is attempting to profit off
Complainant’s goodwill. Such use does not constitute a bona fide
offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii). See Constellation Wines
The Panel finds that the requirements of Policy ¶ 4(a)(ii) have been proven.
Registration and Use in Bad Faith
Respondent’s use of the confusingly similar <chrissiehynde.com> and <chrissie-hynde.com> domain names may cause confusion among Internet users as to the source, sponsorship, affiliation, or endorsement of the resolving website. As mentioned above, Respondent is attempting to profit off the goodwill associated with Complainant and her likeness, which is clear evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because Respondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
In light of the above findings, the Panel concludes that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <chrissiehynde.com> and <chrissie-hynde.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: October 20, 2008
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