Nathaniel Branden v. Namecheap.com
Claim Number: FA1108001404253
Complainant is Nathaniel Branden (“Complainant”), represented by Danis Fickewirth of California, USA. Respondent is Namecheap.com (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nathanielbranden.net>, registered with eNom, 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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 22, 2011; the National Arbitration Forum received payment on August 22, 2011.
On August 23, 2011, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <nathanielbranden.net> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 August 29, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 19, 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@nathanielbranden.net. Also on August 29, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 21, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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 <nathanielbranden.net> domain name is identical to Complainant’s NATHANIEL BRANDEN mark.
2. Respondent does not have any rights or legitimate interests in the <nathanielbranden.net> domain name.
3. Respondent registered and used the <nathanielbranden.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Nathaniel Branden, is an author, lecturer, therapist, and corporate consultant focusing on self-esteem and personal development. Complainant has authored seventeen books, including the following: Who is Ayn Rand? (1962), The Psychology of Self-Esteem (1972), The Psychology of Romantic Love (1983), Judgment Day: My Years with Ayn Rand (1989), The Six Pillars of Self-Esteem: The Definitive Work on Self-Esteem by the Leading Pioneer in the Field (1995), Nathaniel Branden’s Self-Esteem Every Day: Reflections on Self-Esteem and Spirituality (1998), and The Psychology of Self-Esteem: A Revolutionary Approach to Self-Understanding that Launched a New Era in Modern Psychology (2001). Complainant offers its services and books under his NATHANIEL BRANDEN mark.
Respondent, Namecheap.com, registered the <nathanielbranden.net> domain name on March 26, 2009. The disputed domain name resolves to a website featuring biographical information regarding Complainant and hyperlink advertisements.
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.
While Complainant does not provide evidence of any trademark registrations with a trademark authority, previous panels have determined that a complainant need not own a trademark registration in order to establish rights under Policy ¶ 4(a)(i). See 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); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”). The Panel finds accordingly.
Complainant asserts that his rights in his NATHANIEL BRANDEN mark originated over forty years ago. According to Complainant, Complainant is the author of seventeen books relating to self-esteem and personal development. Complainant provides a list of books written by Complainant: Who is Ayn Rand? (1962), The Psychology of Self-Esteem (1972), The Psychology of Romantic Love (1983), Judgment Day: My Years with Ayn Rand (1989), The Six Pillars of Self-Esteem: The Definitive Work on Self-Esteem by the Leading Pioneer in the Field (1995), Nathaniel Branden’s Self-Esteem Every Day: Reflections on Self-Esteem and Spirituality (1998), and The Psychology of Self-Esteem: A Revolutionary Approach to Self-Understanding that Launched a New Era in Modern Psychology (2001). Complainant also claims that it registered the <nathanielbranden.com> and <nathanielbranden.org> domain names to reflect Complainant’s mark. Complainant alleges that he formerly owned the disputed domain name, as well, before Complainant’s third-party webmaster neglected to renew the disputed domain name. Past panels have found that a complainant has established common law rights in a mark if the complainant has demonstrated that the mark has acquired secondary meaning through extensive and continuous use. See Ass’n of Tex. Prof’l Educators, Inc. v. Salvia Corp., FA 685104 (Nat. Arb. Forum May 31, 2006) (holding that the complainant had demonstrated common law rights in the ATPE mark through continuous use of the mark in connection with educational services for over twenty-five years); see also Asper v. Comm. X Inc., D2001-0540 (WIPO June 11, 2001) (surveying UDRP disputes concerning the use of personal names, the panel found that “where the complainant was successful he or she either used the personal name in question as a marketable commodity, allowing his or her name or image to be used for a fee, to promote someone else’s goods or services, or for direct commercial purposes in the marketing of his or her own goods and services). Based on Complainant’s broad publication history, the Panel concludes that Complainant has established common law rights in its NATHANIEL BRAND mark under Policy ¶ 4(a)(i), dating back to 1962.
Complainant does not make any specific allegations as to whether the <nathanielbranden.net> domain name is confusingly similar or identical to Complainant’s NATHANIEL BRANDEN mark. The disputed domain name does contain Complainant’s entire mark, absent the space, and the only other alteration to Complainant’s mark is the generic top-level domain (“gTLD”) “.net.” Prior panels have determined that similar disputed domain names are identical to a complainant’s marks because spaces are impermissible in a domain name and gTLDs are required. See Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name <wembleystadium.net> is identical to the WEMBLEY STADIUM mark); see also Little Six, Inc. v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that <mysticlake.net> is plainly identical to the complainant’s MYSTIC LAKE trademark and service mark). Consequently, the Panel holds that Respondent’s <nathanielbranden.net> domain name is identical to Complainant’s NATHANIEL BRANDEN mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in any of the <nathanielbranden.net> domain name. Previous panels have held that the burden shifts to the respondent to prove it does have rights or legitimate interests when the complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). The Panel finds Complainant made a sufficient prima facie case. Past panels have also held that a respondent’s failure to respond to the Complaint allows the Panel to infer that a respondent does not have rights or legitimate interests in a disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant does not supply any arguments about whether Respondent is commonly known by the disputed domain name. As Respondent has not responded to this case, Respondent also has not made any arguments under Policy ¶ 4(c)(ii). This leads the Panel to investigate the record to determine if Respondent is commonly known by the disputed domain name. The WHOIS information identifies the domain name registrant as “Namecheap.com,” which the Panel determines is not similar to the <nathanielbranden.net> domain name. Past panels have used the WHOIS information to determine that a respondent was not commonly known by a disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name). Therefore, the Panel finds that Respondent is not commonly known by the <nathanielbranden.net> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant claims that Respondent uses the <nathanielbranden.net> domain name to host a website containing outdated biographical information about Respondent and hyperlink advertisements. Complainant provides screen shots of Respondent’s website and it appears that the advertisement hyperlinks relate to psychology and counseling. As Complainant does not argue that the hyperlink advertisements resolve to Complainant’s competitors, the Panel concludes that the advertisements are not competing advertisements. Still, previous panels have found that the use of a disputed domain name to provide unrelated advertisements and hyperlinks is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of a disputed domain name under Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names). The Panel agrees with this precedent and finds accordingly.
Finally, Complainant asserts that it previously owned the <nathanielbranden.net> domain name and that its third-party webmaster inadvertently allowed it to lapse. Past panels have found that a complainant’s inadvertent lapse in registration and a respondent’s subsequent registration of a disputed domain name is evidence that a respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). See Edmunds.com, Inc. v. Ult. Search Inc., D2001-1319 (WIPO Feb. 1, 2002) (finding that the respondent could not rely on equitable doctrines under the Policy to defend its registration of the disputed domain name after the registration was inadvertently permitted to lapse by the complainant, noting that “Respondent was aware of the Complainant’s well-known business and its mark and intended to exploit the mark”); see also RH-Interactive Jobfinance v. Mooburi Servs., FA 137041 (Nat. Arb. Forum Jan. 16, 2003) (“Complainant’s prior registration of the domain name, coupled with Respondent’s failure to respond to this dispute, is evidence that Respondent has no rights or legitimate interests in the domain name pursuant to Policy 4(a)(ii).”). Therefore, the Panel holds that Respondent lacks rights and legitimate interests in the <nathanielbranden.net> domain name pursuant to Policy ¶ 4(a)(ii).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s <nathanielbranden.net> domain name resolves to a website containing outdated information regarding Complainant and advertisement hyperlinks. Complainant claims that Respondent includes the biographical information in an effort to create confusion as to Complainant’s affiliation with the disputed domain name and resolving website. The Panel infers that Respondent commercially gains from the advertising hyperlinks. Prior panels have determined that a respondent registered and used a disputed domain name in bad faith in similar cases under Policy ¶ 4(b)(iv). See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (holding that the respondent was taking advantage of the confusing similarity between the <lilpunk.com> domain name and the complainant’s LIL PUNK mark by using the contested domain name to maintain a website with various links to third-party websites unrelated to Complainant, and that such use for the respondent’s own commercial gain demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Thus, the Panel holds that Respondent’s registration and use of the <nathanielbranden.net> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).
As noted above, Complainant formerly owned the <nathanielbranden.net> domain name and inadvertently allowed the domain registration to lapse. Past panels have concluded that a respondent attempting to take advantage of a complainant’s inadvertent lapse of domain registration is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (inferring that the respondent had knowledge that the <tercent.com> domain name previously belonged to the complainant when the respondent registered said domain name the very same day the complainant’s registration lapsed); see also RH-Interactive Jobfinance v. Mooburi Servs., FA 137041 (Nat. Arb. Forum Jan. 16, 2003) (finding that the respondent’s registration of the <jobfinance.com> domain name “immediately after Complainant failed to timely renew the domain name registration” was evidence of bad faith). The Panel finds accordingly.
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nathanielbranden.net> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: September 28, 2011
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