Adrian Lewis Peterson v. AdrianPeterson.com
Claim Number: FA1208001456431
Complainant is Adrian Lewis Peterson (“Complainant”), represented by D. George Brode of Gant & Hicks, PLLC, Texas, USA. Respondent is AdrianPeterson.com (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adrianpeterson.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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 2, 2012; the National Arbitration Forum received payment on August 2, 2012.
On August 03, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <adrianpeterson.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 August 6, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 27, 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@adrianpeterson.com. Also on August 6, 2012, 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 August 30, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett G. Lyons 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 originally requested that the domain name be cancelled but by way of Additional Submissions made on August 31, 2012, asked instead that the domain name be transferred to it.
A. Complainant
The Complaint is very brief. Those passages from the Complaint relevant to the decision are quoted directly hereunder.
“Complainant is a player/employee for the Minnesota Vikings and National Football League (see Exhibit A).”
“Respondent has registered the domain name with GODADDY.COM. Such registration constitutes bad faith in the following respects: First, the Respondent has intentionally registered the domain name of the Complainant in order to prevent the Complainant from utilizing his own image. Second, Respondent has registered the domain name primarily for the purpose of disrupting Complainant’s business and ability to utilize his own image and celebrity status.”
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that Complainant is a player/employee for the Minnesota Vikings and the National Football League and Respondent is the holder of the disputed domain name.
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.
Although Complainant is professionally represented and the Complaint was prepared by those representatives, there is very little in the Complaint to link it to the requirements of paragraph 4(a) of the Policy.
Respondent's failure to submit a response entitles the Panel to proceed on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and to draw such (negative or otherwise) inferences it considers appropriate pursuant to paragraph 14(b) of the Rules, but it nonetheless remains Complainant’s burden to make its case under paragraph 4(a).
In particular, Complaint must in order to satisfy paragraph 4(a)(i) of the Policy establish that it has rights in a trademark and demonstrate that the disputed domain name is either identical or confusingly similar to that trademark.
For the purposes of paragraph 4(a)(i) a complainant can establish rights in a trademark by providing evidence of either the complainant’s registration of the trademark with a national trademark authority, or by providing evidence of the accrual of so-called common law trademark rights through continuous and ongoing use. In other words, the Policy does not distinguish between registered and unregistered trademark rights (see, generally, State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Nat. Arb. Forum June 19, 2006); Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003); Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) and Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000)).
In this case, the Complaint does not explicitly indicate the trademark in which rights are claimed. There is no proof of registered rights and there is none of the normal indicia of use and reputation of a name that might give rise to common law rights.
Complainant ostensibly claims rights in the ADRIAN PETERSON name but has provided no evidence with respect to use of that name as a trademark in commerce or otherwise for any period of time. Complainant has provided by way of Exhibit A to the Complaint a screenshot of its football player profile page from <nfl.com> however that alone does not establish continuous use of a mark in commerce for any period of time.
Numerous earlier decisions of panels applying this part of the Policy have underscored the requirements to show common law trademark rights in a personal name. The criteria laid down in those decisions are not addressed by the Complaint before this Panel.
By way of illustration, Panel refers to Question 1.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") found at http://www.wipo.int/amc/en/domains/search/overview2.0/index.html#16 which asks: “Can a complainant show UDRP-relevant rights in a personal name?” in answer to which it is said that:
Consensus view: Personal names that have been registered as trademarks are generally protected under the UDRP. While the UDRP does not specifically protect personal names as such, in situations where a personal name unregistered as a trademark is being used for trade or commerce, the complainant may be able to establish common law or unregistered trademark rights in that name. In order to do so, proof of use of the person's name as a distinctive identifier of goods or services offered under that name would normally be required [see also paragraph 1.7 below]. A trademark-equivalent basis has been found in the common law action of passing-off, which is generally intended to prevent the making of misrepresentations to the public in the context of trade, and which if established may provide grounds for reliance on a personal name for the purpose of the UDRP.
Relevant decisions:
Julia Fiona Roberts v. Russell
Boyd,
WIPO Case No. D2000-0210, <juliaroberts.com>, Transfer
Jeanette Winterson v. Mark Hogarth, WIPO Case No. D2000-0235,
<jeanettewinterson.com> inter alia, Transfer
Dr. Michael Crichton v. In Stealth Mode, WIPO Case No. D2002-0874,
<michael-crichton.com>, Transfer
Tom Cruise v. Network Operations Center / Alberta Hot Rods, WIPO Case No. D2006-0560,
<tomcruise.com>, Transfer
Arthur Golden v. Galileo Asesores S.L., WIPO Case No. D2006-1215,
<arthurgolden.com> inter alia, Transfer
Jim Carrey v. BWI Domains, WIPO Case No. D2009-0563, <jimcarrey.com>,
Transfer
Jay Leno v. Garrison Hintz, WIPO Case No. D2009-0569,
<weeknightswithjayleno.com>, Transfer
Geri Halliwell v. Rampe Purda/Privacy-Protect.org, WIPO Case No. D2010-1419,
<gerihalliwell.com>, Transfer
Beyoncé Knowles v. Sonny Ahuja, WIPO Case No. D2010-1431,
<beyoncefragrance.com>, Transfer
However: The name in question needs to be actually used in trade or commerce as an identifier of goods or services to establish unregistered trademark rights for the purpose of the UDRP. Merely having a famous name (such as a businessperson who does not actually use his or her name as an identifier for the business engaged in, or a religious leader), or making broad unsupported assertions regarding use of such name in trade or commerce, would not necessarily be sufficient to show unregistered trademark rights.
Relevant decisions:
Israel Harold Asper v.
Communication X Inc.,
WIPO Case No.D2001-0540, <izzyasper.com> inter alia, Denial
Chinmoy Kumar Ghose v. ICDSoft.com and Maria Sliwa, WIPO Case No.D2003-0248,
<aboutsrichinmoy.com> inter alia, Transfer
David Pecker v. Mr. Ferris, WIPO Case No.D2006-1514,
<davidpecker.com>, Denial
Jacques Chardeau, inter alia v. MindViews, LLC, WIPO Case No.D2008-0778,
<caillebotte.com>, Denial
Margaret C. Whitman v. Domains For Sale, WIPO Case No.D2008-1534,
<megwhitmanforgovernor.com> inter alia, Denial
Vanisha Mittal v. info@setrillonario.com, WIPO Case No.D2010-0810,
<vanishamittal.com>, Denial
Panel finds that Complainant has not established rights within the meaning of paragraph 4(a)(i) of the Policy and so has failed to establish the first limb of the its case.
No findings required (see, for example, Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. 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)).
No findings required for the same reasons.
Having failed to establish at least one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. The Complaint is dismissed WITHOUT PREJUDICE.
It is Ordered that the <adrianpeterson.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: August 30, 2012
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