Astrid J. Munoz v. Alcohol Poisoning Campaign
Claim Number: FA1203001433843
Complainant is Astrid J. Munoz (“Complainant”), represented by Charles C. DeMartino of D’Avanzo & Morreale, P.C., New York, USA. Respondent is Alcohol Poisoning Campaign (“Respondent”), Alaska, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <astridmunoz.com>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 9, 2012; the National Arbitration Forum received payment on March 9, 2012.
On March 14, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <astridmunoz.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 March 15, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 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@astridmunoz.com. Also on March 15, 2012, 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.
A timely Response was received and determined to be complete on April 3, 2012.
An Additional Submission was received from the Complainant and determined to be compliant with Supplemental Rule 7, on April 5, 2012.
An Additional Submission was received from the Respondent and determined to be compliant with Supplemental Rule 7, on April 9, 2012.
On April 17, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends that her name is Astrid Munoz and that she is a highly regarded, world renowned fashion model. Complainant additionally contends that her name, ASTRID MUNOZ, is recognized internationally and is a famous common law trademark. Complainant further implies that Respondent’s registered domain name, <astridmunoz.com> is identical or confusingly similar to Complainant’s protected trademark rights in her name. Complainant states that Respondent does not have permission to use her name in any capacity and that Respondent’s use is not bona fide, nor legitimate or fair use. Complainant alleges that Respondent’s use is an “illicit misappropriation” of Complainant’s mark for the purpose of coercing monetary payment from the Complainant. Complainant also contends that the Respondent’s registration and use was in bad faith.
B. Respondent
Respondent contends that Dan F. Nelson registered the disputed domain name for a “modeling business venture named Astrid Munoz”. Respondent additionally contends that “the name Astrid Munoz is a famous mark because of the “Joint Venture Partnership” that financed Astrid’s career in the US and Europe using the company name “Astrid Munoz”.” Respondent also asserts that without the company the model’s career would not exist and that she “owes millions in back monies to the respondent, and business partner….” The Respondent claims to have rights or legitimate interests in the disputed domain name because of a joint venture company established by the Complainant, the Respondent and his business partner, “from the very first day Astrid Munoz ever started Modeling in 1990”. Respondent also implies that the alleged business arrangement is an acceptable basis for his claimed bona fide, good faith use and says that no facts or circumstances support a finding of registration and use in bad faith.
C. Additional Submissions
Complainant’s Additional Submission emphasizes Respondent’s lack of denial in regards to certain UDRP elements and decries Respondent’s efforts to try to force the UDRP into a dispute about an alleged partnership. Complainant also highlights the Respondent’s statements that the website to which the domain resolves seeks commercial gain through the promotion of a “tell-all” book and screenplay about “BLOWING THE WISTLE [sic]” on the Complainant. The Complainant alleges that Respondent’s actions attempt to disrupt the Complainant’s livelihood and “seeks commercial gain through the attraction of internet users to the illicit website by creating a likelihood of confusion as to the subject matter and endorsement of the website”. The Complainant argues that the actions of the Respondent are efforts to conjure up a fictitious business for illegitimate purposes without Complainant’s knowledge or permission and thus exemplify bad faith. Complainant reasserts that she has never been a party to any joint venture agreement with Respondent.
Respondent’s Additional Submission states that Respondent has absolutely no interest in using the disputed domain name to disrupt Complainant’s livelihood or punish her. Respondent reasserts that he does have a website using the Complainant’s name and mark but that all information contained on the website is true and allowed based on the parties prior agreement. Respondent alleges that “The Complainant received all funds and profits realized from the Astrid Munoz joint venture, and refuses to reimburse the investors their initial investment and share of profits”. Respondent also contends that he is one-third owner of the joint venture/business named Astrid Munoz and that he is using the Domain Name as an artistic effort to gather information to write a book.
The Complainant and Respondent agree that the disputed domain name is the name of the Complainant and that the Complainant is a world famous model. The parties also agree that the name ASTRID MUNOZ is famous as a common law mark, but dispute how it achieved that fame and who is entitled to the use of the mark.
The parties appear to have some prior relationship however none of the pleadings address their past in any meaningful manner that is helpful in resolving this domain name dispute. The parties past experiences include a lawsuit between them sometime in 1998 prior to the registration of the disputed domain name in 2010. Respondent, Alcohol Poisoning Campaign, is not mentioned in any of the current submissions. The entity is listed as a p.o. box in Alaska, USA, said address being shared in WHOIS by the entity’s technical contact, Dan Nelson. Dan Nelson submitted the Respondent’s current pleadings.
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 claims that she has established rights in the ASTRID MUNOZ mark through continuous and ongoing use in conjunction with modeling, which has ultimately resulted in global notoriety and fame. Complainant admittedly has not registered her mark with any governmental authority as a trademark or service mark. Respondent agrees that Complainant’s name ASTRID MUNOZ is a famous mark identifying the Complainant. The Panel finds that Complainant is not required to register the ASTRID MUNOZ mark with a governmental trademark authority to establish rights in the mark under Policy ¶ 4(a)(i). 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 Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (“The Policy does not require that a trademark be registered by a governmental authority for such rights to exist.”).
Complainant argues that she has used the ASTRID MUNOZ mark to support her modeling career continuously and in an ongoing manner since 1996. Complainant claims that through this use, her name, which is the ASTRID MUNOZ mark, has become famous. The Respondent generally agrees with Complainant’s representations and in fact asserts that he and his partner have been involved with Complainant’s modeling endeavors since 1990. The Panel notes that Complainant has failed to provide any evidence of actual use of the mark in association with modeling other than mentioning different fashion shows and magazine covers that she has allegedly been a part of. Complainant has likewise provided almost no evidence that she is a model, outside of the printout she provided from Respondent’s website. However, since both parties agree with Complainant’s representations, which are easily verifiable by an internet search of Complainant’s mark, the Panel finds that Complainant has established its rights in the ASTRID MUNOZ mark under Policy ¶ 4(a)(i) through continuous and ongoing use since as early as 1996. See Roberts v. Boyd, D2000-0210 (WIPO May 29, 2000) (finding that trademark registration was not necessary and that the name “Julia Roberts” has sufficient secondary association with the complainant that common law trademark rights exist).
Complainant states that the disputed domain name is composed solely and completely of her mark, with the addition of the generic top-level domain (“gTLD”) “.com.” The Panel notes that the space between the terms of the mark, ASTRID MUNOZ has been removed. The Panel concludes that Respondent’s disputed domain name, <astridmunoz.com> is identical to Complainant’s ASTRID MUNOZ mark under Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the complainant's CROATIA AIRLINES trademark).
Complainant has proven this element.
The Panel finds that the Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and that the burden has shifted to Respondent to show he does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
The Panel notes that the WHOIS information identifies the registrant of the disputed domain name as “Alcohol Poisoning Campaign.” As Respondent raises no arguments to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
The Panel notes that, because Complainant is in the business of modeling and the products Complainant claims are being promoted from the website are not modeling services, Respondent’s use may be characterized as unrelated. Complainant states that the topic of both the book and screenplay Respondent seeks to market is libelous information about her and her career. The Panel concludes that Respondent is not making a bona fide offering of goods or services ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Vanderbilt Univ. v. U Inc., FA 893000 (Nat. Arb. Forum Feb. 19, 2007) (holding that the respondent did not have rights or legitimate interests in a domain name where it was redirecting Internet users to its own website promoting the respondent’s books unrelated to the complainant); see also State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Nat. Arb. Forum Sept. 27, 2000) (“The unauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services.”).
Despite Respondent's arguments surrounding a First Amendment right to free speech, the Panel finds that Respondent still lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(i). Whether Respondent may establish a website and provide some free speech protected content related to the Complainant is beyond the scope of the UDRP. The UDRP proceeding focuses on how a website is identified and free speech rights do not override trademark rights in a manner that supports a protected mark’s misappropriation or confusing misuse. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (holding that the respondent’s showing that it “has a right to free speech and a legitimate interest in criticizing the activities of organizations like the Complainant . . . is a very different thing from having a right or legitimate interest in respect of [a domain name that is identical to Complainant’s mark]”); see also E. & J. Gallo Winery v. Hanna Law Firm, D2000-0615 (WIPO Aug. 3, 2000) (finding that establishing a legitimate free speech/complaint site does not give rights to use a famous mark in its entirety).
Respondent asserts, in both his Response and his Additional Submission, that he has rights and legitimate interests in the disputed domain name because he was a former business partner with Complainant under the Astrid Munoz business name. Respondent claims that, as a result of this business partnership, he built up considerable rights in the Astrid Munoz name and that the disputed domain name is merely Respondent exercising those rights. Respondent submits multiple affidavits, as well as a prospectus for investors to examine prior to putting money into Respondent and Complainant’s alleged business. The Panel notes that while Respondent has provided multiple affidavits to support his claim, none of the evidence or documentation appears to be professionally done or even objectively indicates the involvement of the Complainant.
Complainant has proven this element.
Complainant claims, in both her Complaint and Additional Submission, that Respondent registered and is using the disputed domain name for his own commercial gain. Complainant states that Respondent is seeking to sell both a book and screenplay from the website to which the disputed domain name resolves. The Panel notes that, but for the subject matter of the book and screenplay, the services provided are unrelated and thus may be the basis of confusing internet users in a manner that is potentially beneficial to the Respondent financially. The Panel finds that the Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website).
Respondent waivers between stating that he hopes to “…make me some money” and asserting that he is engaged in a non-commercial use of the mark for personal and artistic purposes. Respondent also unconvincingly asserts that the information on the website regarding the Complainant is all true and allowable under freedom of speech or based on the parties’ alleged business arrangement.
The Panel makes no determination regarding the free speech rights of the Respondent or the nature of the past relationship of the parties beyond the references noted above. The Panel finds that the Respondent’s unauthorized use of Complainant’s mark for Respondent’s potential commercial gain is sufficient to support a finding of bad faith registration and use.
Complainant has proven this element.
As the Complainant has proven all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <astridmunoz.com> domain name be TRANSFERRED from the Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 1, 2012
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