B C Furtney v. Afterthought
Productions
Claim Number: FA0809001226494
PARTIES
Complainant is B C Furtney (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bcfurtney.com>, registered with Godaddy.com,
Inc.
PANEL
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.
Jonas Gulliksson as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on September 26, 2008; the
National Arbitration Forum received a hard copy of the Complaint on September 29, 2008.
On September 26, 2008, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <bcfurtney.com> domain name is
registered with Godaddy.com, Inc. and
that the Respondent is the current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, 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 October 2, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of October 22, 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@bcfurtney.com by e-mail.
A timely Response was received and determined to be complete on October 21, 2008.
On October 22, 2008, Complainant filed a timely and complete Additional
Submission with the National Arbitration Forum in accordance with the National
Arbitration Forum’s Supplemental Rule 7.
On October 24, 2008, Respondent filed a timely and complete Additional
Submission with the National Arbitration Forum in accordance with the National
Arbitration Forum’s Supplemental Rule 7.
On November 3, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Jonas Gulliksson as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
Complainant
submitted the following Complaint:
Complainant's
NAME is B C Furtney, which is protected as a Mark. B C Furtney is the name the
Complainant has been commonly known as, reflecting his works, awards,
accomplishments and future works in the independent filmmaking and music
arenas. Complainant's name, B C Furtney, is an accomplished and recognizable
name in the independent horror film arena and the use <bcfurtney.com>
by the Respondent in any format, infringes on the rights of Complainant.
The domain name
is the Complainant's proper name, BC Furtney, which is protected as a mark,
clearly identical and confusing to business associates and others that the Complainant,
BC Furtney, has been associated with for over 13 years.
The Respondent
has no rights or legitimate interests to the domain name, which is the Complainant's
proper name, BC Furtney, protected as a mark, which name is the subject of this
Complaint.
Respondent's
use of the domain name, the Complainant's proper name, BC Furtney, is an
attempt to harass and to cause confusion that the Complainant, BC Furtney, is
the one managing this site, created by the Respondent, of a ridiculous nature.
The Respondent
has NEVER been known as BC Furtney.
The Respondent
is known as Ronnie Yowonske, not BC Furtney.
The Respondent
is making unfair use of the domain name, purposely misleading to divert persons
or to tarnish years of hard work and recognition of the Complainant, BC
Furtney, in an attempt to disparage.
The Respondent
has registered the domain name, the Complainant's proper name, BC Furtney, for
the purpose of disrupting the Complainant's business.
By the
Respondent using the domain name, BC Furtney, the Complainant's proper name,
Respondent has attempted to attract, for commercial gain, internet users to
Respondent's web site, or other on line locations, by creating a likelihood of
confusion with the Complainant's name, BC Furtney, as to the source, sponsorship,
affiliation, or endorsement of Respondent's web site.
The domain
name, BC Furtney, should be considered registered and used in bad faith by the
Respondent. The Complainant (BC Furtney) has worked variously as a writer,
filmmaker, photographer, actor and musician. Two of BC Furtney's short horror
films “Mister Eryams” and “Disposer” are featured on the Fangoria Blood Drive
DVD's I and II, and BC Furtney's new-styled screenplay, “Y”, garnered
The Respondent
registered the domain name in dispute, asking you to maintain domain name
registration, representing and warranting to you that (a) the statements made
are complete and accurate (invalid WHOIS address and phone listed) (b) the
Respondent knowingly registered the domain name (the Complainant's proper name
and domain used for years) to deliberately infringe upon and violate
Complainant's rights (c) the Respondent registered the domain name BCFURTNEY
for unlawful purposes and (d) Respondent knowingly uses the domain name in
violation of applicable laws and regulations.
The Respondent
clearly is using the Policy in bad faith to deprive Complainant of his,
previously registered in good faith, domain name, which is the Complainant's
proper name, known to business associates of many years, family, friends,
employers, etc. of the past, present and future. Complainant asserts that he
has invested substantial sums of money in developing and marketing his work as <bcfurtney.com>
and the Respondent has no rights to the domain name.
The Respondent
is currently falsely advertising a movie under <bcfurtney.com>
entitled "
The following Response was submitted:
The Respondent
is positive that a fair decision in favor of the Respondent; Afterthought
Productions, will be made after the facts have been established to show no
illegal actions of any type, or any false assertion of the Complainant were
implemented to acquire the Domain in dispute; <bcfurtney.com>.
There are many
unusual assumptions and false statements made by the Complainant in the signed
copy of the original complaint document I received. First and foremost, I feel
it is extremely important to clarify all assumed and misleading information
submitted as part of the complaint, so that an amicable decision can be made
allowing Afterthought Productions to retain the Domain in dispute.
Afterthought
Productions was established in the state of
The Complainant
suggests, with an apparent attempt to discredit
Afterthought Productions, that invalid information displayed by the WHOIS
Database of registrant information for the Domain in dispute, is an attempt to
somehow "mislead" anyone interested in obtaining information as to
who the registrant of the Domain is. I assure you, no such intention ever
existed. It was an oversight made by a third party whose duties include new
Domain registration for Afterthought Productions. The NAME and EMAIL of the
registrant was Afterthought Productions and <afterthoughtproductions@yahoo.com>,
which are correct. The ADDRESS and PHONE were incorrect, and was immediately
corrected as soon as it was brought to the Respondent's attention. However, due
to the complaint, registry status changes are prohibited and the corrected
information failed to update. The Respondent also recently began a rigorous
audit of 40+ Domains owned and/or managed by Afterthought Productions to ensure
valid and current information for the WHOIS Database. The primary Domain of the
Respondent; <AfterthoughtProductions.com>, has maintained its WHOIS
Database entry integrity for over 8 years.
The Complainant
suggests several times throughout the complaint that the name "B C
Furtney" is protected as a Mark. It appears that the Complainant's
intention is to lead the Forum into assuming that "B C Furtney" is
protected as a registered Trademark with the United States Patent and Trademark
Office, owned by the Complainant. This is not true. No such Trademark is
registered with the Trademark Office. However, it is true that "B C
Furtney" has been used by the Complainant as an identifier for works by
the Complainant, but that is not a substitute for a Trademark or Trademark
Registration. The Complainant should recognize that it is imperative that one
clear his, her, or its professional name prior to significant use in any
industry. Obtaining Trademark Protection is essential.
The Complainant
states in section Factual and legal grounds, the Respondent has no
rights or legitimate interest to the Domain in dispute. This is an assumption
and not legally or factually based. Afterthought Productions has very
legitimate interest in the Domain in dispute for the following reasons:
Search engine
placement and indexing for Keywords such as: Independent Films, Indy Films,
Horror Films, Indy Horror Films, Underground Films, Underground Horror Films,
and Independent Music Videos.
Afterthought
Productions is an established Multimedia company recently embarking into
Independent Film, Independent Film Production, and Independent Psychological
Horror Film Production.
Afterthought
Productions is already established and associated with Independent Music
Production, and recently began to branch into Independent Music Video
Production.
The Domain in
dispute was acquired as an additional outlet and additional source of
information targeted toward people with similar interest in Independent Film
Production, Music Video Production, and Multimedia.
It is appalling
and slanderous for the Complainant to suggest in a signed copy of the original
complaint that Afterthought Productions knowingly uses the Domain in violation
of any law or any regulations. It is also very disturbing that the Complainant
suggests that registering the Domain is an attempt to harass or confuse the
ownership of the Domain. The Complainant also mentioned that Afterthought
Productions acquired the Domain for a "ridiculous nature". It is very
unclear what the Complainant is suggesting. There is no intention what so ever
to harass anyone, or confuse anyone that is seeking information as stated
above.
I am terribly
surprised by the continuous suggestive efforts by the Complainant to create a
notion that it is the sole intention or desire of the Respondent to tarnish,
slander, defame, or misrepresent the Complainant. There is absolutely no
mention of "B C Furtney" in written, verbal, or visual context
exhibited anywhere at the Domain in dispute.
The Complainant
suggests that the Respondents intention is to confuse visitors to the Domain in
dispute. Respectfully, I request that the Forum not even consider such an
illogical statement. There is absolutely no mention of "B C Furtney"
on the presentation what so ever. Any intention to cause confusion for any
visitor would be illogical and absurd. Throughout the presentation currently
displayed at the Domain, is a blatant display of Afterthought Productions
owning and managing the Domain for the purpose of introducing information for
"
It is an unfair
assumption by the Complainant to suggest or state any view of validity of
"
I respectfully
request that the Forum issue a fair decision allowing the Respondent to retain
the Domain based on the facts presented here, not on assumptions, suggestive
notions, excuses, and paranoid delusions submitted by the Complainant.
The Respondent
followed all ICANN rules and governing laws with regards to acquiring the
Domain in dispute.
The Complainant
had all regulated time to secure the Domain and renew the Domain. The Complainant
also had the advantage of additional time through Redemption and Deletion
periods before the Domain was released to the registrar market.
As part of
continuous yearly ICANN audits, it is requested that all contact and
administrative information be updated yearly. It is truly unbelievable and
highly improbable that the Complainant or Administration was unable to check
any email correspondence over an estimated minimum period of 150 days or 5
months from the original registrar company, encouraging the Complainant to
renew the Domain, or warning of Domain name expiration. Not to mention a period
of 365 days or 12 months to react to audit email from ICANN or ICANN
facilitating company.
Afterthought
Productions should not be held liable or penalized for the Complainant's
negligence. And I respectfully request again that the Forum make a decision
based on facts. Not assumptions, suggestive notions, excuses, and paranoid
delusions which are the bases of the Complaint. The Respondent violated no laws
in acquiring this Domain as suggested by the Complainant.
Furthermore,
the filing of this Complaint appears to be the exact opposite of any good faith
basis. It appears to be an attempt to harass Afterthought Productions both
productively and financially. The complaint could also be viewed as an attempt
by the Complainant to intimidate or threaten any effort by the Respondent to
embark into a shared Independent Film genre. Or lastly could be viewed as some
sort of asinine marketing stunt that has gone awry.
It is the
belief of the Respondent that the Complainant has created a false and dismal
situation for the Forum to review as part of the complaint, instead of taking
responsibility for ones own negligence that created the situation in the first
place.
I restate that
the intentions of the Respondent are absolutely clear and valid. The Respondent
makes no claim to be associated with or represent "B C Furtney", or
associate any production or information with "B C Furtney". The
Respondent has absolutely no intention what so ever to make use of the Domain
for any commercial gain. It is the sole intention of the Respondent only to
share information and to educate a certain target group of professionals and
followers alike that are interested in a specific genre of entertainment. Not
to sale products or to make any commercial gain.
Lastly, upon
the decision of the Forum allowing the Respondent to maintain the Domain, the
Respondent, in good faith, will include a "Disclaimer" at the Domain
that would completely disassociate the name "B C Furtney" with all
content displayed and presented in its entirety.
The following
Additional Submission was received from Complainant:
Complainant
asserts that one need NOT register his own name in order to claim rights in or
protection for that name as a Mark. Complainant asserts that he has rights to
use his own name and makes claim that he FIRST held a registration of his own
website <bcfurtney.com> for a
substantial period of time at <Register.com>.
Please
refer to <http://web.archive.org/web/*/bcfurtney.com> for proof that
registration was initiated in the year 2004 and updated for years. Please refer
to some of the following to view B C Furtney's website for past many years:
<http://web.archive.org/web/20050309091644/http://www.bcfurtney.com>,
<http://web.archiye.Org/web/20061004013834/http://www.bcrurtney.com>
<http://web.archive.Org/web/20061205030250/http://www.bcfurtney.com>
<http://web.archive.org/web/20060616125538/http://www.bcfurtney.com>
Registrant is fully aware of who BC Furtney
is and is fully aware that he is infringing and violating the Rules and, as
stated in No 2 of the Policy, it is the Registrant's responsibility to
determine whether registering the domain name, <bcfurtney.com>, infringes
on or violates these rights. It is in no way an accident or coincidental that
the Respondent chose the name, BC Furtney. It was a blatant and intentional act
of bad faith.
Reply to factual and legal allegations made
in response
Complainant further states that once web
users looking for information on Complainant's name and work, the site is
misdirecting them to hideous messages Respondent is intending for Complainant,
such as "Power weakens those who don't have it," Welcome Home, We
have unfinished business, are you ready to play the game?", all messages
intended to harass and interrupt the business of the much accomplished
Complainant, causing volumes of inquiries of Complainant as to who is doing
this. (It is well to note that the Complainant is currently producing a film in
the Western Pa. Area,) (Please visit <www.myspace.com/bcfurtney> ) and it is
interrupting to filming and planning to have all the needless inquiries. I
assure the Forum there is NO film underway with Afterthought Productions named
"
Complainant states that the Respondent has
his OWN web-site (with invalid WHOIS information posted ALSO) (such as 1313
Mockingbird Lane and, again, the 555-1212 information phone number listed under
administrative contact, and has used THAT site for his messages which have been
slanderous, libelous and disparaging in nature against the Complainant in 2006
(<http://web.archive.org/web/*/afterthought
productions.com>) dated 10/14/08 (the
ONLY page he removed from the archives of his site). Respondent has posted that
the Complainant is a "meth addict living in a cardboard box in
If the Respondent has not YET proposed a sale
of the domain name, that does not negate bad faith registration and use.
There is no logical or reasonable explanation
for Respondent to have rights to the domain name, <BCFURTNEY.COM.>.
Complainant has held directing, writing,
teaching of film and acting, and other work in his field, on the merits of his
experience and accomplishments. His website held authentic materials crucial to
his continuing successfully to publish and inform interested persons in his
work. Respondent is running <bcfurtney.com> as a "scam
site" with childish wrestling quotes because of some
"infatuation" with Complainant that cannot be put to rest
The Additional Submission specifically
responds to the statements and allegations contained in the Response submitted
by the Respondent:
Complainant has been established in
independent horror filmmaking for 13 years. Respondent states
that he is "RECENTLY EMBARKING" into independent film.
Complainant has been producing and directing music and music videos for over 13
years, writing and performing in and around
Complainant asserts that Respondent stating
that the site was acquired for informational purposes is bizarre and misleading
to anyone visiting the site of <BCFURTNEY.COM.> Respondent has NO
valid information to visitors about the works of B C Furtney on this site and
therefore IS misleading, confusing and deceptive. The Complainant has submitted
proof of his work and accomplishments and awards to the Forum, in part. The Respondent is misleading the public and
most importantly now, the Forum, with the false information submitted to you.
See enclosed harassment messages intended for
Complainant #1 & #2 on the <BCFURTNEY.COM> website. The
messages are ENTIRELY intended to harass, as Complainant DID move "home" for an upcoming film next month
(see <myspace.com/bcfurtney> for the press and
other coverage on that REAL project.)
The Complainant asserts that the Respondent
"stalked" the Complainant'site for an opportunity to acquire same.
The Complainant asserts that the domain name was FIRST registered as <bcfurtney.com>, by B C Furtney and
is Complainant's own marketing tool, not a marketing, reference tool, outlet
tool or any other kind of tool for Afterthought Productions to be OWNING.
Afterthought Productions does NOT have any independent horror awards,
press, or recognition in the independent horror arena whatsoever to be
associated with owning BC Furtney's domain name.
The Respondent stated that the Complainant's
own negligence created this situation in the first place. The Complainant
firmly asserts that he had absolutely NO intention of losing his domain name
for ANY reason and was confident when his updates and redesign underway was
completed, it would be re-published without the loss of his own named site. The
Complainant should not be held responsible or penalized for a
"stalker", Ronnie Yowonske, d/b/a Afterthought Productions, to
acquire his expired domain and asks the Forum for relief from this situation of
bad faith registry.
The Complainant assures the Forum that he is
fully aware that he does not hold the market on independent film, but asserts
that the Respondent is falsely advertising nonexistent work on <BCFURTNEY.COM>. The Respondent
cannot "educate" any certain group of followers of B C Furtney about
B C Furtney. And, to continue to
advertise anything on <BCFURTNEY.COM> by Ronnie Yowonske
of Afterthought Productions is use of the domain name in bad faith. A visit by
followers and interested persons in the formerly held site of <bcfurtney.com> is the only avenue
for persons to clearly and accurately see his work in the future, not through a
site created by a stalker of expired domains.
The "false and dismal” situation is one
created by the Respondent. The Complainant merely seeks use of his own name,
protected as a mark, for his OWN website updates and RE-registration in good
faith as was held FIRST. The Complainant is seeking the Forum's assistance in
accomplishing this through this process.
Further, if the Respondent "makes no
claim to be associated with or represent B C Furtney, or associate any
production or information with BC Furtney" why would the Respondent buy up
the domain, <BCFURTNEY.COM>? The Respondent has
been stalking the site for this opportunity that merely slipped by the
Complainant. Again, there is no logical or reasonable explanation for
Respondent to own a domain named <BCFURTNEY.COM>. I submit to the
Forum that he does not own a domain in the name of Ronnie Yowonske.com, his OWN name, where all his false
projects can be announced.
The "rigorous audit of the
40+domains" is not being done, as stated, much false administrative
contact information still exists (one example enclosed) and THAT alone is
reason for a domain to be canceled. (I will also remind the Forum that the
WHOIS false information, knowingly and deliberately was furnished by Respondent
on <BCFURTNEY.COM>. It is common
practice for the Respondent to furnish non-existent phone numbers and addresses
for himself, a practice of true internet stalkers.
The Respondent admits that the contact information
on the WHOIS is incorrect. When he listed the incorrect information, it was in
violation of the laws and was reason for the domain to be canceled. The
Complainant asserts that it was an intentional act of bad faith to do so on the
domain name Afterthought Productions registered as <BCFURTNEY.COM.>
Finally, the Complainant requests that the Forum
review the Complainant's archived information offered in this Additional
Submission and further be made aware of the hard work and accomplishments noted
and the many, many more to be announced and added to the original site held
FIRST at <Register.com> by the Complainant.
The request of the Respondent to "completely
disassociate the name B C Furtney" by Disclaimer is also ludicrous and
bizarre to suggest that would be a fair solution to the Complaint at hand and
that the pattern of conduct of Ronnie Yowonske d/b/a Afterthought Productions
proves he is making ANOTHER false statement to the Forum about his intentions
with regard to the Complainant's name.
<BCFURTNEY.COM> is basically designed for harassment to Complainant
and has no logical content for any persons to be "educated" in any
specific genre. It is a website created by the Respondent for messages intended
SOLELY for the Complainant. Any proof, other than rhetoric about work,
accomplishments or awards, etc. of the Respondent in the independent horror
arena has not been submitted and if it is, it will be created solely for the
purpose of this Complaint to further deceive the Forum. Complainant has offered
the Forum proof of work and awards and press, etc. for years of work as <bcfurtney.com>.
Respondent
The following
Additional Submission was received from Respondent:
The Respondent
would like the Forum to bare witness of a forewarning to the Complainant that
any further slanderous remarks, defaming remarks, or out-right lies brought to
this Forum with regards to the complaint, will result in immediate legal action
against the Complainant. The respondent will not tolerate or stand idle while
the Complainant continues to express indignant personal views, slanderous
remarks, defaming remarks, and out-right lies to the Forum of professionals
about the respondent personally, or the Respondents company; Afterthought
Productions or affiliates. It is strongly advised that the Complainant seek
legal council before any further response to the Forum or the Respondent is
submitted. It is also strongly advised that the Complainant focus attention to
what is valid to the complaint. The majority of focus, according to the
precocious response of the Complainant to the Respondents initial response, is
filled with out-right lies, misleading suggestive notions, diluted opinions,
and self-invented predictions of future events.
Also, in
absolute fairness to the Complainant, with the assumption that the Complainant
has lost focus of the complaint, it is advised that any further attempts to
discredit the Respondent or Afterthought Productions will not be tolerated, and
will be considered harassment. It is the purest form of harassment as the
Complainant continuously keeps skewing focus toward Afterthought Productions in
a deceiving attempt to try and convince the Forum of some sort of wrong doing
on behalf of the Respondent's company. Turing over every virtual rock, trying
to create a perception for the Forum that Afterthought Productions is somehow
unethical with its business practices. Most recently to note is the effort by
the Complainant to obtain WHOIS information for Domains owned or managed by the
Respondent, then proceeding indirectly to request that <AfterthoughtProductions.com>
be dissolved due to invalid WHOIS information. This is harassment. This is
unwarranted. And is viewed as an attempt to harass, hinder, and threaten
Afterthought Productions both productively and financially.
In defense of
the Respondents Company, it is more then valid to state that <AfterthoughtProductions.com>
has been through several changes over the past 8 years that are out of the
control of the Respondent. From security breaches at the Domain Registrar, to
buy-outs and consolidation of the original Registrar; Blue Hill / Blueberry
Hill / 4 Domains.
Due to security
reasons and unsolicited marketing attempts to contact the Administrator of
Afterthought Productions; Ron Yowonske, the WHOIS information was purposely
modified over a year or so ago to try to alleviate constant unsolicited mail
and unsolicited marketing phone calls targeted to the Respondent. However,
Organization Name and Tech Name are absolutely correct.
It is the full
intention of the Respondent to eventually purchase additional privacy features
provided by ICANN and the Registrar to make all WHOIS information private. Due
to an ongoing effort to pull <AfterthoughtProductions.com>
from its current Registrar to a different Registrar, adding the feature at the
cost of the current registrar is not cost effective. The plan is to add the
feature once the Domain is able to be redirected to the new Registrar.
Furthermore, only if requested by the Forum, the Respondent will privately submit
information to only the Forum and not the Complainant, with the condition that
the information not be included for any view by the Complainant as part of the
complaint, in fear of further harassment or malicious activity to warrant a
lawsuit. The Respondent will submit a list of Clients compiled over the past 8
years, just as if the Forum itself was a new Client of Afterthought
Productions. The Respondent would respectfully urge the Forum to contact ANY of
the Clients on the list to ask of their experience dealing with Ron Yowonske -
Afterthought Productions - Mon Valley LIVE - or the elite team of affiliates
and staff.
It is The
Respondent's belief that the Complainant obviously has a novitiate view and
inaccurate expectation of privilege or rights to a Domain name. The Complainant
should understand in a laymen example that no one really owns, or is truly
entitled to any Domain name by same-name warrant alone.
As an example:
Your last name
is Smith.
You rent a
single room house on
The Landlord
advises that you can paint the walls any color you choose. You can also display
any art you wish on the walls as laws permit.
You hire a
painter to paint the walls black. You hang your own art on the wall. You live
there for 4 years, but then you decide not to pay your rent. The Landlord gave
you a minimum of 150 days to pay your rent. You didn't pay your rent and got
evicted.
The Landlord
rents the single room house to a different client, last name Jones.
The new client
paints the walls white and replaced your art with their art.
You show up at
the Landlord's house months later, demanding you have imminent rights to the
house on
With regards to
the Complainants "unusual demand" and "impractical
interpretation" that one needs to display Awards or Accomplishments, or
even own Awards or Accomplishments, in order to embark into Independent Film
Production, or acquire any Domain as such, is none the less invalid, and to a
degree insane. The Respondent will not entertain such a ridiculous statement,
nor waste anymore of this Forum's time and attention addressing such an asinine
remark.
Due to the
"suggestive abilities" of the Complainant and potential for any
infringement on the story line of "Dead End Street", the Respondent
does not wish to submit any prepared synopsis, story boards, script, or screen
play writings of "Dead End Street" to the Forum at this time.
However, if requested by the Forum, material will be submitted privately to
only the Forum and not the Complainant, with the condition that the material
not be included for any view by the Complainant as part of the complaint. This
will prove that the project is indeed underway and currently in preproduction
contrary to the relentless and callous attempts by the Complainant trying to
convince the Forum that the production doesn't exist. For the Complainant to
repeatedly suggest that the production doesn't exist is honestly perplexing.
And for the Complainant to state that the Complainant can make any
"guarantee" that the project doesn't exist,
causes great suspicion and alertness to the Complainant's reprehensible unbridled
determination to threaten, intimidate, and sabotage any efforts by Afterthought
Productions to embark into Independent Film Production.
The Respondent
is embarrassed by the extreme self-serving ego and inflated sense of self-worth
expressed by the Complainant with regards to an "alleged infatuation"
that the Respondent has with Complainant. Any information involving where the
Complainant lives in the United States, where the Complainant's family resides,
what projects the Complainant is currently involved with, or where any projects
are being developed, are truly and most genuinely of no importance, focus, or
even a preoccupation of the Respondent what so ever. It is a fact that the
Respondent is aware of the city the Complainant originated from, and it is a
fact that the Respondent is aware that the Complainant was involved for a
period of a few years in making low-budget Independent Horror Films up until
around 2005. The Respondent never once stated that it was any
"accident" in obtaining the Domain in dispute as suggested by the
Complainant. It was actually a "strategic effort" to acquire the
Domain for all valid reasons as stated previously in the Respondents initial
response.
Furthermore it
is valid to state that it is the most genuine assumption by the Respondent that
the Domain in dispute was purposely left to expire. The determination was made
due to constant reviews by Afterthought Productions of notable companies and
organizations that track and compile Web Trend Reports, and efforts to monitor
companies like <dropscout.com>
for Domain Trend information. A recent Trend shows a lot of low - no budget web
presence owners have migrated from a .com, .net Domain, to free Social Network
sites such as Myspace and Facebook. The cost involved to maintain a Domain can
become very expensive. The Social Network sites are free and very simple to use
and maintain. Not to mention these popular Social Network sites boasts tens or
hundreds of millions of people which can help alleviate any type of marketing
expense that would be associated with marketing a Domain.
Afterthought
Productions has been able to acquire many new Domains, with absolutely no
dispute, under exacting conditions as outlined in the previous paragraph for
several years. NOT ONE INSTANCE in over 8 years has Afterthought Productions
EVER been marked or related to ANY type of unethical actions regarding the use
of any acquired Domains.
Afterthought
Productions should IN NO WAY be considered a "cyber squatter" as the
Complainant tirelessly and shamelessly continues to try and coerce the Forum
with a blatant intention of harassment toward the Respondent, and disrespect
toward the Forum and these proceedings, by proclaiming outright lies as truth,
indignant personal views, slanderous remarks, defaming remarks, and exhibiting
a reckless ploy to discredit, disrupt, intimidate, threaten, harass, and
embarrass the Respondent and Afterthought Productions.
Afterthought
Productions is a "Multimedia Company", vigorously and diligently
engaged with all forms of Multimedia and Entertainment. Web
Development, Sound Recording, Music Composition, Radio, Print, Graphic,
Photography, and Video.
The Respondent
BOLDLY STATES that Afterthought Productions has NEVER ONCE acquired a Domain
for the purpose to operate or associate any type of phishing scam to defraud
web visitors, mislead visitors, or conceal any intentions of the purpose of the
Domain and content.
The Respondent
BOLDLY STATES that Afterthought Productions has NEVER ONCE acquired a Domain
for the sole purpose to make commercial gain by trying to sell it back to a
considerably well know entity, i.e. "Tom Cruise", trademark entity,
i.e. "Nike" or monolithic entity, i.e. "Microsoft".
FINDINGS AND 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.
The Panel initially notes that the burden of proof lies with Complainant to establish rights in a trademark or service mark.
Complainant has, as it may be understood, claimed common law rights to the mark BC Furtney on the ground that it is the personal name as well as the professional name of Complainant. Complainant has asserted that he, for more than thirteen years, has worked variously as a writer, filmmaker, photographer, actor and musician.
According to Policy
¶ 4(a)(i), common law rights are sufficient to
establish rights in a mark. The ICANN dispute resolution policy is thus broad
in scope in that the reference to a trademark or service mark in which
Complainant has rights means that ownership of a registered mark is not
required and unregistered or common law trademark or service mark rights will
suffice to support a domain name complaint under the Policy. See British
Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000).
However, it is not
enough to simply have a famous or recognized name to achieve common law
protection. The Panel stresses the fact that the name must be used as a source
indicator, not as a mere personal identity marker. See Geiger v. Premium Design, FA 604896 (Nat. Arb. Forum
Jan. 17, 2006) (finding that the Complainant had failed to establish rights in
a mark while the Complainant had not stated that “Teddy Geiger” had a source
indicating function but had asserted that the <teddygeiger.com>
and <teddygeiger.net> domain names were “exact
representations of [Complainant’s] professional name,” implying that “Teddy
Geiger” referred to a person and not a source of goods or services); see also Ahmanson
Land Co. v. Save Open Space & Elec. Imaging Sys., D2000-0858 (WIPO Dec. 4, 2000) (“A mark comprising a personal name has acquired secondary
meaning if a substantial segment of the public understand the designation, when
used in connection with services or a business, not as a personal name, but as
referring to a particular source or organization.”); see also Bruus-Jensen v.
Adamsen, D2004-0458 (WIPO Sept. 29, 2004) (holding that the
complainant had not acquired common law rights in his personal name as a
reference to a particular source or organization).
Complainant has, as it may be understood, contended that common law rights to the name has been acquired through the long term use (more than ten years) of the name in e.g. the independent horror film industry. Furthermore, Complainant has claimed that the name BC Furtney has become synonymous with Complainant’s work, which has been recognized through awards and in the media covering this industry.
Relevant evidence of secondary meaning includes length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition. See Amsec Enters., L.C. v. McCall D2001-0083 (WIPO, April 3, 2001).
The evidence submitted by the Complainant relates to his capacity as a filmmaker and includes extracts from his homepage at “myspace,” under the URL: <http://www.myspace.com/bcfurtney>, together with reviews of some of his short horror films by “House of Horror” and an article entitled “Local filmmaker honored” (date or origin unclear).
Although the evidence undoubtedly is indicative of the professional activities of Complainant, the Panel finds that Complainant has failed to establish common law rights to the mark BC Furtney as there is no relevant evidence submitted in support of the public identifying Complainant’s mark exclusively or primarily with the product of Complainant. See e.g. Molecular Nutrition, Inc. v. Network News & Publ’ns, FA 156715 (Nat. Arb. Forum June 24, 2003) (finding that the complainant failed to establish common law rights in its mark because mere assertions of such rights are insufficient without accompanying evidence to demonstrate that the public identifies the complainant’s mark exclusively or primarily with the Complainant’s products).
Because Complainant has failed to establish the element of rights in the mark under
§ 4(a)(i) of the Policy, further inquiry into the remaining
elements is unnecessary. See Creative
Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the
complainant must prove all three elements under the Policy, the complainant’s
failure to prove one of the elements makes further inquiry into the remaining
element unnecessary); see also Hugo Daniel Barbaca Bejinha v. Whois Guard
Protected, FA 836538 (Nat. Arb.
Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or
legitimate interests or its registration and use in bad faith where the
complainant could not satisfy the requirements of Policy § 4(a)(i)).
Paragraph 15(e) of the Rules states, in relevant part:
"If the Panel concludes that the dispute is not within the scope of Paragraph 4(a) of the Policy, it shall so state. If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding."
Respondent has in its response stated that the filing of the Complaint in question “appears to be the exact opposite of any good faith basis. It appears to be an attempt to harass Afterthought Productions both productively and financially.” The Panel interprets this statement as a request for the Panel to declare bad faith in filing this Complaint under the Rules.
It is for Respondent to show knowledge on the part of Complainant of Respondent’s rights or legitimate interest in the domain name and evidence of harassment or similar conduct by Complainant in the fact of such knowledge. See Verkaik v. Crownonlinemedia.com, D2001-1502 (WIPO Mar. 19, 2002).
After reviewing the submissions the Panel notes that establishing common law rights to a personal name is, objectively speaking, very much dependent on the evidence relied upon. In this case little substantial evidence has been submitted. Mere assertions in either direction will suffice neither as evidence of acquired common law rights, nor as evidence of bad faith or abuse of the Policy. The Panel therefore concludes that no circumstances have been shown that the Complaint was brought under the Policy for any other reason than to declare Complainant’s rights.
DECISION
Complainant having failed to
establish all three elements required under the ICANN Policy, the Panel
concludes that relief shall be DENIED.
Jonas Gulliksson, Panelist
Dated: November 17, 2008
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