Robert Greene v. Bob Greene
Claim Number: FA1106001391921
Complainant is Robert Greene (“Complainant”), represented by Ryan Holiday, Louisiana, USA. Respondent is Bob Greene (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <robertgreene.net>, registered with GoDaddy.com, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 2, 2011; the National Arbitration Forum received payment on June 2, 2011.
On June 5, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <robertgreene.net> domain name is registered with GoDaddy.com, Inc. and that 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 7, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 27, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@robertgreene.net. Also on June 7, 2011, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 29, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <robertgreene.net> domain name is identical to Complainant’s ROBERT GREENE mark.
2. Respondent does not have any rights or legitimate interests in the <robertgreene.net> domain name.
3. Respondent registered and used the <robertgreene.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Robert Greene, owns the ROBERT GREENE mark. Complainant is a bestselling author and a noted expert on history, politics, strategy, seduction, and war. Complainant has had books on the New York Times Bestseller Lists and lectures frequently at universities and businesses.
Respondent, Bob Greene, registered the disputed domain name on May 16, 2009, which purports to be a fan site dedicated to Complainant. The disputed domain name prominently displays ads for various services and giveaways.
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.
In order to acquire rights in a mark, a complainant need not register that mark with a federal trademark authority. 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 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). The Panel will review the record to determine whether Complainant has established common law rights in the mark under Policy ¶ 4(a)(i).
Complainant contends that his ROBERT GREENE mark has developed secondary meaning and is therefore fully associated with Complainant. Complainant asserts that he is the author of a number of books, four of which have appeared on the New York Times Bestseller List. Complainant avers that he wrote The 48 Laws of Power, The Art of Seduction, The 33 Strategies of War, and The 50th Law. Additionally, Complainant claims that he frequently lectures at universities and businesses about the content developed under the mark. While Complainant has alleged an extensive amount of information about his use of the ROBERT GREENE mark, Complainant has failed to provide any dates or supporting evidence of its allegations. Therefore, the Panel concludes that Complainant has failed to provide sufficient evidence of common law rights in its ROBERT GREENE mark under Policy ¶ 4(a)(i). See 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); see also Build-A-Bear Workshop, Inc. v. Pallone, FA 874279 (Nat. Arb. Forum Mar. 1, 2007) (finding that the complainant did not establish common law rights in the BEAR BUILDER or BEAR BUILDERS marks because the evidence it submitted was insufficient to show the mark had acquired any secondary meaning).
The Panel finds that Policy ¶ 4(a)(i) has not been met.
Because of the reasons the Panel gives in its discussion of Policy ¶ 4(a)(i), the Panel declines to analyze Policy ¶ 4(a)(ii). 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).
Based on the Panel’s finding that Complainant has not satisfied Policy ¶ 4(a)(i), the Panel has declined to analyze Policy 4(a)(iii). See 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)).
Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <robertgreene.net> domain name REMAIN with Respondent.
John J. Upchurch, Panelist
Dated: July 12, 2011
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