Wernher Pramschufer v. No company
Claim Number: FA1106001392100
Complainant is Wernher Pramschufer (“Complainant”), Australia. Respondent is No company (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wernherpramschufer.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 5, 2011; the National Arbitration Forum received payment on June 5, 2011.
On June 6, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <wernherpramschufer.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 13, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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@wernherpramschufer.net. Also on June 13, 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 July 7, 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 <wernherpramschufer.net> domain name is identical to Complainant’s WERNHER PRAMSCHUFER mark.
2. Respondent does not have any rights or legitimate interests in the <wernherpramschufer.net> domain name.
3. Respondent registered and used the <wernherpramschufer.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Wernher Pramschufer, is a professional who offers music composing services. Complainant does not have a registered trademark for his personal name and has not alleged common law rights or shown any evidence of extensive use.
Respondent, No company, registered the <wernherpramschufer.net> domain name on April 6, 2011. The disputed domain name resolves to a website that is a clone of Complainant’s website that replaces all the original content with slanderous and false claims about Complainant and Complainant’s company.
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’s personal name is Wernher Pramschufer. Complainant alleges that he is professionally involved with music composing services and owns a website connected with his company at the <greatmusic.com.au> domain name. Complainant does not provide any evidence of trademark rights in his personal name, however. While personal names registered as trademarks are generally protected under the UDRP, the Policy has specifically excluded trademark protection for personal names in the absence of a registered trademark or demonstrated common law rights. The UDRP, stating that merely having a personal name is insufficient, requires a personal name to be used in trade or commerce to identify goods or services in order to establish rights. As Complainant has shown neither a registered mark nor provided any evidence of extensive use of his personal name, Wernher Pramschufer, in trade or commerce, the Panel finds that Complainant does not have rights in any WERNHER PRAMSCHUFER mark for the purposes of Policy ¶ 4(a)(i). See World Intellectual Property Organization, WIPO Overview of WIPO Panel Views on Selected UDRP Questions § 1.6 (2nd ed. 2011); see also Pecker v. Ferris, D2006-1514) (WIPO Jan. 15, 2007) (finding no rights in the “famous” name of Complainant as Complainant provided no evidence of rights in the personal other than broad assertions of national renown and fame).
Accordingly, the Panel finds Complainant has failed to satisfy Policy ¶ 4(a)(i).
Based on the findings under Policy ¶ 4(a)(i), the Panel finds it unnecessary to make a finding under Policy ¶ 4(a)(ii).
Based on the findings under Policy ¶ 4(a)(i), the Panel finds it unnecessary to make a finding under Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED, WITHOUT PREJUDICE, and Complainant may refile in the event he seeks to allege a registered mark, or facts that establish common law rights based on use of the subject name in trade or commerce.
Accordingly, it is Ordered that the <wernherpramschufer.net> domain name REMAIN WITH Respondent.
John J. Upchurch, Panelist
Dated: July 19, 2011
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