Państwowe Muzeum Auschwitz-Birkenau w Oświęcimiu v. Ross Mueller
Complainant is Państwowe Muzeum Auschwitz-Birkenau w Oświęcimiu (“Complainant”), represented by Andrzej Bartosiewicz of Yonita Inc., California, USA. Respondent is Ross Mueller (“Respondent”), Cayman Islands, pro se.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <auschwitz.org>, registered with Rebel.com Corp.
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.
M. Kelly Tillery, Esquire as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 8, 2011; the National Arbitration Forum received payment on August 8, 2011.
On August 9, 2011, Rebel.com Corp. confirmed by e-mail to the National Arbitration Forum that the <auschwitz.org> domain name is registered with Rebel.com Corp. and that Respondent is the current registrant of the name. Rebel.com Corp. has verified that Respondent is bound by the Rebel.com Corp. 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 August 9, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 8, 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@auschwitz.org. Also on August 9, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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.
A timely Response was received and determined to be complete on September 8, 2011.
On September 15, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed M. Kelly Tillery, Esquire as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends that:
1. The Auschwitz-Birkenau State Museum is a memorial and museum in Oświęcim, Poland, which includes the site of former German concentration camps Auschwitz I and Auschwitz II-Birkenau;
2. Auschwitz Concentration Camp is the symbol of humanity's cruelty in the 20th century, a monument to the martyrdom of over one million men, women and children, not a historical museum in the usual sense of the word: which bears irrefutable witness to one of the greatest crimes ever committed against humanity;
3. Preserved in the condition in which they existed in 1947 at the time of the founding of the museum, the walls, barbed wire fences, platforms, barracks, gallows, gas chambers and cremation ovens all demonstrate the conditions under which the Nazi genocide took place in the former concentration and extermination camp of Auschwitz-Birkenau, the largest in the Third Reich;
4. It is the largest cemetery in the world: more than 1.1 million people of many nationalities from 24 different countries, among them many Jews, were systematically starved, tortured and murdered. Archives, photographs and exhibits provided by Auschwitz-Birkenau State Museum illustrate the methods used by the SS, as well as their efficiency;
5. It was established by the Nazis in 1940, in the suburbs of the town of Oświęcim which, like other parts of Poland, was occupied by the Germans during the Second World War. The name of the town was changed to Auschwitz, which became the name of the camp as well. Over the following years, the camp was expanded and eventually consisted of three main parts: the first and oldest was the so-called ‘main camp’, later also known as Auschwitz I (the number of prisoners fluctuated around 15,000, sometimes rising above 20,000), which was established on the grounds and in the buildings of pre-war Polish army barracks;
6. The second part was the Birkenau camp (which held over 90,000 prisoners in 1944 - Jews, Poles, Roma (Gypsies), and others), also known as Auschwitz II; this was the largest part of the Auschwitz complex, with crude barracks, most of them wooden. The Nazis began building it in 1941 on the site of the village of Brzezinka, 3 km from Oświęcim. The Polish civilian population was evicted and their houses confiscated and demolished. The greater part of the apparatus of mass extermination was built in Birkenau and the majority of the victims were murdered there;
7. At least 1.1 million of people of different nationals perished in the Auschwitz camp between 1940 and 1945, including 960.000 Jews (mainly from Hungary, Poland, France, Holland, Greece, Czechoslovakia, Belgium, Germany, Austria and Yugoslavia), 75.000 Poles, 21.000 Gypsies of different citizenship, 15.000 Soviet army prisoners and 15.000 other nationalities;
8. Since the end of World War II, Auschwitz Nazi concentration camp and State Museum itself is well-known worldwide under the names “Auschwitz” and “Auschwitz-Birkenau”;
9. The 2 July 1947 Act of the Polish Parliament, later amended on 25 May 1999, established the “Auschwitz-Birkenau State Museum” on the grounds of the two extant parts of the camp, Auschwitz I and Auschwitz II-Birkenau. It is devoted to the memory of the murders in both camps during World War II. The museum performs several tasks, among them research into the Holocaust;
10. During its session in Cairo and Luxor, 22-26 October 1979, UNESCO World Heritage Committee decided to enter “Auschwitz concentration camp” on the List as a unique site and to restrict the inscription of other sites of a similar nature;
11. During its thirty-first session, Christchurch, New Zealand, 23 June-2 July 2007, World Heritage Committee Based on the Statement of Significance, approved the name change to the following: “Auschwitz Birkenau” as title and “German Nazi Concentration and Extermination Camp (1940-1945)” as subtitle;
12. Respondents <auschwitz.org> domain name is identical to the name “Auschwitz” in which the Complainant has statutory and common law rights and is well known by that name because the disputed domain name merely combines Complainant’s name and the generic top-level domain (“gTLD”) “.org”;
13. Name “Auschwitz” is solely used for indicating “Auschwitz Birkenau, German Nazi Concentration and Extermination Camp (1940-1945)” and “Auschwitz-Birkenau State Museum”. No other place (geographical, administrative), service or product have been named as “Auschwitz” or is bearing that name today or has other meanings;
14. Respondent has no connection with Museum or Nazi concentration camp. There is no information in the record suggesting a nominal association between Respondent and the disputed domain name. Respondent has never been commonly known or otherwise known by the domain names in question. Compliant not licensed or authorized Respondent to use its Auschwitz mark in any way;
15. Registrant of the disputed domain only as “Ross Mueller” which does not resemble the contested domain. Respondent is not commonly known by the <auschwitz.org> domain name so as to have acquired rights to or legitimate interests in the domain under Policy 4(c)(ii);
16. Respondent has made no demonstrable preparations to use the domain name <auschwitz.org> and that it is not currently in active use. Respondent does not use the <auschwitz.org> domain name in connection with an active website and domain name “auschwitz.org” is not resolving (“Server not found”);
17. This inactive use of the disputed domain name supports a finding of bad faith registration and use pursuant to Policy ¶ 4(a)(iii);
18. The Respondent has also demonstrated a pattern of bad faith by the registration of at least one other prominent domain name <cisco.net>.
B. Respondent
Respondent contends that:
1. He has a legitimate interest in the Disputed Domain, registered the domain name solely because it incorporates a historical event, not because it resembles a trademark and thus its legitimate interest was established at the point of registration. He did not acquire the Disputed Domain with Complainant’s trademark in mind, and there is no evidence from which to infer that it did.
2. Complainant has failed to establish that Respondent registered or used the Disputed Domain in bad faith. Anyone is entitled to register a common word in a domain name under the UDRP, provided there is no evidence the domain was registered with the specific intent to profit from a complainant’s trademark. There is not a scintilla of evidence here supporting an inference that Respondent had any such malicious intent when the Disputed Domain was registered. The Disputed Domain was not acquired with the intent to sell to Complainant, to disrupt Complainant’s business, or to confuse consumers seeking to find Complainant’s web site. The Disputed Domain was not acquired to prevent Complainant from owning a domain name incorporating its trademark.
3. Respondent takes no position with respect to the enforceability of Complainant’s alleged trademarks in this proceeding.
4. The registration of domain names, incorporating historical words like “Auschwitz,” establishes a respondent’s legitimate interest under the Policy, provided the domain -- as is the case here -- was not registered with a trademark in mind. Hundreds of thousands of people were impacted by this event and not one individual or entity may lay explicit claim to the rights to a historic event or place.
5. There is no evidence of bad faith registration or use. The Disputed Domain was purchased from a registrar because it incorporated a historical event and Respondent registered it pursuant to it’s historical value, which it believed was entirely lawful because the Disputed Domain incorporates an event not one individual can own. Absent direct proof that a common word domain name was registered solely for the purpose of profiting from Complainant’s trademark rights, there can be no finding of bad faith registration and use. There is no evidence here that Respondent registered the Disputed Domain to profit from Respondent’s trademark. Accordingly, it cannot be inferred that Respondent registered the Disputed Domain to target Complainant’s mark.
1. Complainant has not met its burden of proof by a preponderance of the relevant, admissible evidence that Respondent’s Domain Name is identical or confusingly similar to a trademark in which Complainant has rights.
2-3. Without a finding for Complainant on No. 1, analysis on Nos. 2 and 3 are unnecessary.
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."
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 claim ownership of any trademark registration in any jurisdiction for “Auschwitz” or any mark including “Auschwitz”. However, registration is not required, as rights can be established by use.
Complainant was established on July 2, 1947 as “State Oswiecim-Brezezinka Museum”. On May 24, 1999, the Polish Act establishing Complainant was changed to “State Auschwitz-Birkenau Museum”. Thus, it would appear that Complainant did not use “Auschwitz” as a mark in any form, for museum or any other services, until 1999, and then only in the form of “State Auschwitz-Birkenau Museum”. Although Complainant claims it is known as “Auschwitz”, Complainant does not allege use of “Auschwitz” alone or present on this record any evidence of such use.
Thus, if Complainant has rights in a mark, its mark is “State Auschwitz-Birkenau Museum” and its rights have developed through use since 1999 in connection with museum services.
The Panel finds that Complainant does have rights in the mark “State Auschwitz-Birkenau Museum” or “Auschwitz-Birkenau State Museum” (or, in Polish, “Panstwowe Muzeum Auschwitz-Birkenau Oswiecim”).
The question is whether the domain name, “Auschwitz” is identical or confusingly similar to that mark of Complainant. The domain name is one word; the mark is four (or five in Polish). Thus, they are not identical.
The domain name is, however, identical to one of the words in the mark, arguably the, or at least one of the dominant words. The mark itself makes clear that it is used in connection with a museum. The domain name gives no indication for which goods or services, if any, it is used. And, in fact, it has not yet been used, for museum or any other goods or services.
Further, while the word/name “Auschwitz” has virtually universal meaning and recognition, it is, in fact, a place, a geographic location, originally the Nazi-chosen name for a town outside of Oswiecim, Poland and also the name of the concentration camp established there in 1940. Trademark rights in the name of a geographic location, even one with such unparalleled significance, are rare and must generally be established by evidence of secondary meaning. And even with such evidence, any rights would be limited to museum services. In many jurisdictions, for registration purposes, Complainant would likely have to disclaim any rights in “Auschwitz” alone. On this record, this Panel cannot say that Complainant has established that any public associates Complainant, a museum, with the name/mark “Auschwitz” alone, as opposed to the geographic location, be it of historical and/or present existence.
Although Respondent “takes no position” with regard to ¶4(a)(i); the Panel must find in favor of Complainant on this point to proceed with further analysis.
The Panel finds that the domain name is not identical and not confusingly similar to any mark in which Complainant has rights.
Without a finding for Complainant on Paragraph 4(a)(i), no analysis or finding on this issue is required.
See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Art. 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)).
Without a finding for Complainant on Paragraph 4(a)(i), no analysis or finding on this issue is required. Id.
Having found that Complainant has not proven all elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <auschwitz.org> Domain Name REMAIN WITH Respondent.
M. Kelly Tillery, Esquire, Panelist
Dated: October 4, 2011
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