National Arbitration Forum




Dynamic Language Center, Ltd v. LeAnn Hillman

Claim Number: FA0901001242911



Complainant is Dynamic Language Center, Ltd (“Complainant”), represented by Julie Wiediger, of Axios Law Group PLLC, Washington, USA.  Respondent is LeAnn Hillman (“Respondent”), South Carolina, USA.



The domain name at issue is <> ("the disputed domain name) and it is registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide ("Melbourne IT").



The undersigned, David H Tatham, 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 ("the Forum") electronically on January 14, 2009; the Forum received a hard copy of the Complaint on January 19, 2009.


On January 15, 2009, Melbourne IT confirmed by e-mail to the Forum that the disputed domain name <> was registered with it and that Respondent is the current registrant of the name.  Melbourne IT has verified that Respondent is bound by its Worldwide 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 January 21, 2009, a Notification of Complaint and Commencement of Administrative Proceeding, setting a deadline of February 10, 2009 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 by e-mail.


A timely Response was received and determined to be complete on February 10, 2009.


On February 18, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Mr. David H Tatham as Panelist.



Complainant requests that the domain name be transferred from Respondent to Complainant.



A. Complainant

Complainant claims common law rights in the service mark DYNAMIC LANGUAGE and quotes from McCarthy on Trademarks and Unfair Competition, § 25:74.2 (4th ed. 2002), as well as from several previous Decisions as evidence that the registration of a trademark is not necessary to establish that a complainant has sufficient rights in a mark to satisfy the requirements of paragraph 4(a)(i) of the Policy.


            Complainant contends that it first began using the mark DYNAMIC LANGUAGE in commerce in connection with its language translation services in 1984 and that, shortly thereafter, on November 1, 1985, it was incorporated as Dynamic Language Center in the State of Washington. However it did not register its domain name <> until April 29, 2008. Complainant contends that it has used the DYNAMIC LANGUAGE mark continuously and in all fifty US states to offer and to sell its services, and has done so for more than twenty years and that, therefore, it has acquired rights under the common law and clearly acquired priority to use the mark in connection with translation services as well as in all associated markets throughout the United States.


            Complainant contends that the disputed domain name is identical to its mark but for the addition of the word “Services” which simply describes its business, namely the provision of services. It then refers to several previous Decisions under the Policy holding that the addition of a descriptive or generic word to a mark creates no significant distinction for the purposes of paragraph 4(a)(i) of the Policy.


Complainant also contends that it is of no moment that the disputed mark also contains the top-level domain “.com”, as not only is this a feature that is required of all domain name registrants, but it has also been held that a domain name with this suffix is still be identical to a complainant’s mark because it is not relevant.


Complainant contends, and quotes a number of previous Decisions under the Policy to back this up, that Respondent has no rights or legitimate interests in the disputed domain name because: (1) it has never been known by the disputed domain name; (2) its use is not bona fide, and (3) it is not authorized to use the mark.—


1.  Respondent’s WHOIS information identifies Respondent as “LeAnn Hillman”. Therefore, Respondent is not commonly known by the disputed domain name pursuant to paragraph 4(c)(ii)of the Policy.


2.  Complainant annexed copies of pages taken from the website at the disputed domain name which, it contends, clearly show that Respondent advertises to those seeking translation services. Thus, it is in competition with Complainant's own identical services. Furthermore, Respondent operates in South Carolina and one of Complainant's largest customers is located in neighbouring North Carolina. Annexed to the Complaint were copies of several invoices from Complainant's customers in both North and South Carolina. Complainant therefore contends that Respondent is using a confusingly similar domain name to divert its customers to Respondent’s website.  


3.  Complainant has never authorized Respondent to register domain names bearing its mark and, furthermore, it contacted Respondent on November 18, and December 12, 2008, informing Respondent of its unauthorized use. Annexed to the Complaint were copies of the relevant correspondence.


Complainant also alleges bad faith on the part of Respondent because: (1) the disputed domain is confusingly similar to Complainant’s mark; (2) it attracts unknowing Internet users to Respondent’s website for commercial gain; (3) Respondent’s website is being utilized to attract and obtain individuals seeking translation services and, as such, the disputed domain is being utilized for commercial gain and users accessing Respondent’s disputed domain may be confused as to Complainant’s affiliation with the domain; and (4) Respondent is using the disputed domain name, to offer products in direct competition with Complainant’s business.


B. Respondent

Respondent commences by outlining the process that she went through to choose the business name, Dynamic Language Services, and thus logically the domain name <>.


After moving to the Charleston, South Carolina area she looked for employment in her chosen field of medical interpreting, but was unsuccessful as the area was too small so she started her own business. First she purchased a number of relevant books and, in a chapter from one of them, she read of the steps that one should go through to pick a unique brand for a business. She wanted a name that was unique to the South Carolina area, but yet stated what she did. After several brain-storming sessions with friends, after consulting Roget’s Thesaurus, and taking into consideration that the names of many language companies sounded rather the same, and were thus generic, she chose the name Dynamic Language Services. The word ‘Dynamic’ encompassed who she was and what kind of service she would offer, and ‘Language Services’ let potential clients know what she did.


She then conducted a search on the website of the South Carolina Secretary of State, to confirm that there were no companies that had a similar name and obtained a trademark in the State of South Carolina for the name. She also applied for and received a business license.


In 2008 she became a Limited Liability Company and made another trademark application, which included a slogan, in the name of the new company. This was granted on May 13, 2008.


She then enrolled in Yahoo Small Business’s web hosting service and applied for and was granted the disputed domain name <> at which she created a website so as to increase awareness of the business for potential clients in South Carolina, and only in South Carolina.


Respondent contends that there was never any fraud, or intent on her part to copy someone else’s name, rather it was chosen through a well thought out, planned and researched premise based on the belief that it was a unique name which, she further contends, it is in South Carolina. 


Respondent contends that the disputed domain name is neither identical nor confusingly similar to Complainant's name. For example, in a Google search for 'Dynamic Language', the first listing for Complainant occurs on page 4, while Respondent is not even listed. A similar search on Yahoo shows both companies on page 1, but Complainant is number 2 and refers to it as being in Seattle, WA while Respondent's company is number 4 and mentions it as being in South Carolina. Complainant's blog is 10th on the same page and Respondent contends that there is no possible way that a potential client could confuse the two companies because an internet user, mistakenly arriving at Respondent's website would find it clearly expressed that the company only does business in the eastern part of South Carolina. The counties in which Respondent does business are clearly listed. Respondent states that she has never heard of Complainant and has never had any client call, or e-mail, or communicate with her in any way that they had confused the two companies.


She further contends that she established her mark legitimately and legally and did not take someone else’s mark and then just add “Services” and she asks the Panel to take into consideration the fact that both companies have rights to their own respective domain names and that since Complainant has, by its own admission, coexisted with Respondent in the State of South Carolina thus far without causing any confusion among their respective clients she sees no reason why that arrangement could not continue.


Respondent disputes Complainant's contention that she is not commonly known as Dynamic Language Services. Whilst it is true that the contact information listed in WHOIS, is not of Dynamic Language Services, LLC, she chose, for security reasons, to have a private domain registration in her own name. She claims that Yahoo advises, on its website, that it is important to have a private registration in order to avoid spam and other unwanted solicitations. However it is clearly stated on Respondent's company website that it is a locally owned, South Carolina company, and not located in Meryville, CA as the contact information reads. All of the documents for the company are in its name, not that of Respondent, e.g. the business license, bank account, website, trademark, brochures, and business cards and, since the website, the trademark, the business license and the LLC information are all publicly accessible, Respondent contends that she is commonly known as Dynamic Language Services, LLC and authorized to use the disputed domain name as it is currently published.


Respondent then argued against several of the Decisions cited by Complainant and emphatically denied its contention that she ever, under any circumstances used the website at the disputed domain name "to divert business away from someone else."  She states that almost all of her clients come from face to face marketing, and the few clients gotten from the website have been for Notary services.

Respondent contends that she falls into none of the categories listed in paragraph 4(b) of the Policy and that Complainant has failed to prove that: (1) she is a “cyber squatter”; (2) she had the intention of preventing Complainant from reflecting its mark in a corresponding domain name; (3) she had the intention of disrupting Complainant's business; or (4) she intentionally tried to attract the business of Complainant’s clients.

Respondent further draws attention to an entry on Complainant's blog website stating that Complainant's website "went live on 7/21/08" which is in direct conflict with Complainant's statements in the Complaint that it established its domain name in April 1998.

Respondent accuses Complainant of trying to obtain any and all domain names that are similar to its own domain name in order to funnel traffic to its website so that no matter what search term a person puts in, if they put even anything close or related to the main name, they will be directed to the main web address. Respondent also accuses Complainant of using false allegations in order to take the disputed domain name away from her, and hints that Complainant may be guilty of “reverse domain name hijacking”.

She concludes by reiterating that she is an honest local South Carolina business woman who went about starting a business in order to carve out a modest niche for herself in her local area, that she has never used her domain name in an incorrect way, and that she conducts all of her business in a legal and professional way.



Both Complainant and Respondent are in the business of providing translation services. Complainant for 25 years, and Respondent for only about 2 years. The former is based in Washington but has clients in all 50 States of the USA, and the latter is based in South Carolina and operates only in that State. Respondent is also a Notary Public.



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.


Preliminary Issues


Respondent, LeAnn Hillman is an individual and in the Response she mostly refers to herself in the first person singular (“I”). However she occasionally lapses into the first person plural (“We”) which could be a reference to her company, Dynamic Language Services LLC. The Panel has attempted, in this Decision, to distinguish between Respondent herself, and her company. Also, because Respondent is an individual or, as she describes herself, “an honest local South Carolina business woman”, because she is not represented, and because she is clearly not familiar with the nuances of the Policy and a Complaint under it, the Panel has gone into greater detail to explain its reasoning than if both parties were represented legally.


Identical and/or Confusingly Similar


Complainant does not have an application or a registration for DYNAMIC SERVICES as a trademark, but it claims user rights in this name since 1984. Paragraph 4(a)(i) of the Policy is clear that it is only necessary for a complainant to have ‘rights’ in a name that is identical or confusingly similar to a respondent’s domain name and there have been many Decisions in which it has been held that common law rights are sufficient in this regard. An early example was Winterson v. Hogarth, D2000-0235 (WIPO May 22, 2000), but see also Artistic Pursuit LLC v., FA 894477 (NAF March 8, 2007) in which it was found that paragraph 4(a)(i) of the Policy does not require a trademark registration if a complainant can establish common law rights in its mark, as well as Zee TV USA, Inc. v. Siddiqi, FA 721969 (NAF July 18, 2006) which found that the complainant need not own a valid trademark registration for the ZEE CINEMA mark in order to demonstrate its rights in the mark under the Policy.


Complainant claims to have begun using the mark DYNAMIC LANGUAGE in 1984 in connection with its language translation services. However there is very little proof thereof. Annexed to the Complaint was a copy of a document from the Secretary of State in Washington State but this only confirms that Complainant was incorporated as DYNAMIC LANGUAGE CENTER LTD on November 1, 1985. However there were also filed copies of four invoices dated variously between March 2007 and March 2008. The name at the top of these is DYNAMIC LANGUAGE CENTER, with considerable emphasis on the word DYNAMIC, but alongside this is the company’s address which is topped by the name ‘Dynamic Language’. Also, at the foot of the page, are instructions on how to pay which are headed “Make all checks payable to Dynamic Language”. Complainant has also registered the domain name <>.


This evidence for the use of the name ‘Dynamic Language’ is thin, but it has not been challenged by Respondent, and both the invoices and the domain name do seem to indicate that Complainant does, on occasions, refer to itself by this name. The Panel is therefore prepared to accept that Complainant has common law rights in it.  


What Respondent does challenge however, is Complainant’s allegation that her name is confusingly similar to that of Complainant, but the Panel cannot agree. Respondent’s description of how she arrived at the name under which she trades is no doubt accurate, as is the story of her Google and Yahoo searches, although copies of these were not filed with the Response so the Panel could not verify them. However this is beside the point.


Her arguments, whilst passionately expressed, do not address the real issue. The concept of “confusingly similar” lies at the very heart of all trademark conflicts, where the test is whether the names are phonetically, visually, or conceptually similar. The same thinking has been carried over into Decisions under the Policy because these words appear in Paragraph 4(a)(i) thereof.


Although the phrase ‘Dynamic Language’ is made up of two ordinary dictionary words, their conjunction does give it a slight degree of distinctiveness which is a requirement for the registration of every trademark. Indeed, Respondent has two State registrations for the DYNAMIC LANGUAGE mark, although a State registration does not go through the same rigorous tests for registrability that a Federal registration must undergo. Respondent claims that she hit upon it after considerable research, but it seems that she omitted to undertake an internet search where, surely, Complainant’s existence would have come to light. None of the dictionary definitions for the word ‘dynamic’ describe or have any relation to the word ‘language’ and so, as noted above, the combination of the two words does have some distinctiveness.


It falls therefore for the Panel to decide whether the addition of the word ‘services’ is sufficient to distinguish Complainant’s common law trademark from Respondent’s domain name, and the Panel has concluded that it is not. The two names are conceptually similar.


There have been many Decisions under the Policy on this point. Complainant refers to America Online, Inc. v. Anytime Online Traffic School, FA 146930 (NAF April 11, 2003) in which it was found that Respondent’s domain names, which incorporated Complainant’s entire mark and merely added the descriptive terms ‘traffic school’, ‘defensive driving’, and ‘driver improvement’ did not add any distinctive features capable of overcoming a claim of confusing similarity; and Space Imaging LLC v. Brownell, AF-0298 (eResolution September 22, 2000) which found confusing similarity where Respondent’s domain name combines Complainant’s mark with a generic term that has an obvious relationship to Complainant’s business. This is particularly relevant in the present case where the disputed domain name is simply Complainant’s mark with the addition of the word “Services” which precisely describes Complainant’s business, namely the provision of language translation services.


There was also a similar finding in Novell, Inc. v. Taeho Kim, FA 167964 (NAF October 24, 2003) in which the <> domain name was found to be confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” because even though “the word ‘solutions’ is descriptive when used for software, Respondent had used this word paired with Complainant's trademark NOVELL”.


The disputed domain name also contains the top-level domain “.com”, but a TLD is something that is required of all domain names, and it been held in numerous Decisions that this should be disregarded when comparing a domain name with a name in which a complainant has rights. See, for example, Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) finding <> to be identical to the complainant’s mark POMELLATO because the generic top-level domain “.com” after it was not relevant; as well as Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO April 22, 2000) where the Panel said: “Similarly, the addition of the generic top-level domain (gTLD) name ".com" is likewise without legal significance since use of a gTLD is required of domain name registrants, ".com" is one of only several such gTLDs, and ".com" does not serve to identify a specific service provider as a source of goods or services.


Finally, the Decision in Vanguard Group Inc. v. Proven Financial Solutions, FA 572937 (NAF Nov. 18, 2005) combines both of the above two elements for it was held that the addition of both the word ‘advisors’ and the gTLD ‘.com’ did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under paragraph 4(a)(i) of the Policy.


On this evidence, the Panel has concluded that the disputed domain name is confusingly similar to Complainant’s common law service mark, and that paragraph 4(a)(i) is proved.


Rights or Legitimate Interests


Under this section of the Policy, Complainant levels three charges at the door of Respondent, and the Panel will consider each of them in turn.


1.      That Respondent is not commonly known by the disputed domain name and is not authorized to register a domain name containing Complainant’s mark.


It is quite true that, according to the WHOIS information, the owner of the disputed domain name <> is Respondent herself – LeAnn Hillman. She provides a very clear and reasonable explanation for why the name came to be registered by her rather than by her company, but in the circumstances, she can hardly rely upon paragraph 4(c)(ii) of the Policy to counter this charge and claim that she herself, as the owner and registrant of the domain name, has been commonly known by that name.


It was held, for example, in Braun Corp. v. Loney, FA 699652 (NAF July 7, 2006) that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark; while in Reese v. Morgan, FA 917029 (NAF April 5, 2007) it was concluded that the respondent was not commonly known by the <> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name.


On this evidence, the Panel therefore concludes that Complainant’s first charge is proved.


2.      That the use of the disputed domain name is not bona fide.

Here, Complainant is on less sure ground, as there is no evidence of mala fide use.


The disputed domain name resolves to a website that advertises translation services which, according to Complainant , compete with those that it offers. Complainant claims to have clients in both South and North Carolina – and provides some copy invoices as proof thereof – but there is no evidence of any confusion between the activities of the two companies, even thought these appear to be the same, and even though both companies appear to co-exist in South Carolina.


Respondent has provided a comprehensive history of how she came to choose the name of her company and what her business consists of. She claims that she has provided translation services in South Carolina since 2006 using the Dynamic Language Services LLC business name and the disputed domain name, although she notes that the latter has provided her with little or no translation work. She contends that she is not competing with Complainant’s business, but instead is offering a set of highly special skills in a relatively small geographical area. Of course Complainant offers the same set of skills, but it is true that the website at the disputed domain name carries a prominent Notice that it is located in the Charleston, South Carolina area and serves three surrounding county areas. There is no evidence to support Complainant’s contention that Respondent is diverting some of its business to herself or her company.


In Modern Props, Inc. v. Wallis, FA 152458 (NAF June 2, 2003) it was held that the respondent’s operation of a bona fide business of online prop rentals for over two years was evidence that the respondent had rights or legitimate interests in the disputed domain name; and in Invicta Watch Co. of Am., Inc. v. Santana, FA 727672 (NAF August 3, 2006) it was said: “Moreover, Respondent used the domain name <> for a significant period of time for business purposes, thus further highlighting his rights and legitimate interests in the title.  Respondent alleges that at all times his business was entirely unrelated to that carried on by Complainant. Also, in Workshop Way, Inc. v. Harnage, FA 739879 (NAF August 9, 2006) the respondent overcame the complainant’s burden by showing it was making a bona fide offering of goods or services at the disputed domain name. Finally, in Scholastic Inc. v. Master Games International, Inc. D2001-1208 (WIPO January 3, 2002) the panel found that the respondent’s use of the disputed domain name for a website regarding chess tournaments, particularly because the domain name appropriately described both the target users of the respondent’s services and the nature of the respondent’s services, was a bona fide use of the domain name.


The Panel has therefore concluded that Respondent is using the disputed domain name in connection with a bona fide offering of services and that this second charge is not proved.


3.      That Respondent is not authorized to use Complainant’s mark.

Respondent states that she chose the business name Dynamic Language Services, LLC because she offered language services and ‘dynamic’ described how she intended to conduct her business. She therefore contends that the disputed domain name <> is comprised of common, descriptive terms that accurately describe her business.


In Advanced Drivers Education Products & Training, Inc. v. MDNH, Inc., FA 567039 (NAF November 10, 2005) it was found that the disputed domain name was not used in the trademark sense, but was“a descriptor of the site’s intended content or theme,” and therefore that complainant failed to prove that the respondent lacked any rights or legitimate interests in the disputed domain name.


The Panel agrees with these Decisions, and concludes that Respondent has been able to establish that she has legitimate rights and interests in the disputed domain name and that, therefore, paragraph 4(a)(ii) of the Policy is not proved.


Registration and Use in Bad Faith


Having found for Respondent on the question of rights or legitimate interest, there is no need for the Panel to consider the question of bad faith but, for the record, the Panel states that it found no evidence of any bad faith on the part of Respondent who appears to have acted in good faith throughout the short period of time in which her company has been in existence.




The Panel would also like to comment on the following issues which have been referred to by Respondent but not dealt with in the above Discussion –


1.      Respondent refers to an entry on Complainant’s blog website concerning the date on which it went live. However she states that this is in conflict with the date that appears in the Complaint, namely April 1998. However the Panel has not been able to find any reference in the Complaint to this date.

2.      Respondent has suggested that Complainant may be guilty of reverse domain name hijacking, but this requires some evidence of bad faith on the part of a Complainant, and there is no evidence of that here.



Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.






David H Tatham, Panelist
Dated: March 4, 2009







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