Rose McGowan v. Private Whois rosemcgowan.com
Claim Number: FA1112001419570
Complainant is Rose McGowan (“Complainant”), represented by Charles J. Harder of Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, California, USA. Respondent is Private Whois rosemcgowan.com (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rosemcgowan.com>, registered with Internet.bs Corp.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Jeffrey M. Samuels, Hon. Robert T. Pfeuffer (Ret.), and G. Gervaise Davis III, as Panelists.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 12, 2011; the National Arbitration Forum received payment on December 13, 2011.
On December 13, 2011, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <rosemcgowan.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs 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 December 15, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 2012 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@rosemcgowan.com. Also on December 15, 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 January 17, 2012, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Jeffrey M. Samuels, Hon. Robert T. Pfeuffer (Ret.), and G. Gervaise Davis III as Panelists.
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
Complainant Rose McGowan is a TV and movie actress who, over the past 21 years, has appeared in numerous shows and movies. Complainant was nominated for the 1996 Independent Spirit Award for “Best Debut Performance” for her role in The Doom Generation. Complainant also was nominated for the 1999 MTV Movie Award for “Best Villain” for her role in Jawbreaker.
Complainant asserts that she has a common law trademark and/or service mark in her name “Rose McGowan” and that the disputed domain name, <rosemcgowan.com>, is identical to her name and mark.
Complainant further contends that Respondent has no rights or legitimate interests in the <rosemcgowan.com> domain name. Complainant indicates that Respondent’s name is not “Rose McGowan.”
Complainant notes that the disputed domain name, which was registered on September 28, 2000, resolves to a website which hosts an aggregation of third-party sites. See Complaint, Exhibit D. Complainant maintains that Respondent, presumably, receives click-through revenue from the “infringing” website by directing traffic to the third-party commercial sites. According to Complainant, given Respondent’s use of the disputed domain name, Respondent cannot argue that the site in issue is a fan site.
With respect to the issue of “bad faith” registration and use, Complainant points to the decisions in Dion v. Burgar, D2000-1838 (WIPO Feb. 13, 2001), and Cruise v. Network Operations Ctr., D2006-0560 (WIPO July 5, 2006), for the proposition that Respondent’s action prevents Complainant from reflecting her common law trademark in a corresponding domain name, within the meaning of paragraph 4(b)(ii) of the Policy.
B. Respondent
Respondent did not file a Response.
The Panel finds that: (1) the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights: (2) Respondent has no rights or legitimate interests in the domain name; and (3) the domain name was registered and is being used in bad faith.
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.
The Panel holds that Complainant has a common law service mark in her name “Rose McGowan.” Such rights derive from her long, continuous, and exclusive use of such name in connection with entertainment services. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established).
The Panel further concludes that the disputed domain name, <rosemcgowan.com>, for all intents and purposes, is identical to the “Rose McGowan” name and mark. The removal of a space and the addition of a gTLD is inconsequential since spaces are impermissible in a domain name and a top-level domain is required for any domain name. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001).
Rights or Legitimate Interests
The Panel finds that Complainant has met the burden of establishing that Respondent has no rights or legitimate interests in the disputed domain name. There is no evidence that Respondent is using the domain name in connection with a bona fide offering of goods or services, that Respondent is commonly known by the domain name, or that Respondent is making a noncommercial or fair use of the domain name.
The Panel concludes that the domain name was registered and is being used in bad faith.
Respondent is using the website . . . to redirect Internet users to a website that contains information and advertisements . . . . Respondent presumably profits from this use of the confusingly similar disputed domain name in the form of click-through fees. Additionally, Respondent’s use of Complainant’s mark creates a likelihood of confusion regarding the source of the content resolving from the disputed domain name. The Panel finds this is an attempt by Respondent to profit from the goodwill associated with Complainant’s mark. Therefore, the Panel finds Respondent’s attempt to profit from its use of the confusingly similar disputed domain name constitutes registration and use in bad faith pursuant to Policy ¶4(b)(iv).
See Carter v. Network Operations Ctr., FA 1253377 (Nat. Arb. Forum, May 4, 2009).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rosemcgowan.com> domain name be TRANSFERRED from Respondent to Complainant.
Jeffrey M. Samuels, Hon. Robert T. Pfeuffer (Ret.), and G. Gervaise Davis III
Panelists
Dated: January 26, 2012
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