Stevland Morris aka Stevie Wonder v. read read read
Claim Number: FA1307001512268
Complainant is Stevland Morris aka Stevie Wonder (“Complainant”), represented by Stephen J. Strauss of FULWIDER PATTON LLP, California, USA. Respond-ent is read read read (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <littlesteviewonder.com>, registered with GO-DADDY.COM, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on July 30, 2013; the National Arbitration Forum received payment on July 30, 2013.
On July 31, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <littlesteviewonder.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 1, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 21, 2013 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@littlesteviewonder.com. Also on August 1, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respond-ent via post and fax, to all entities and persons listed on Respondent’s registra-tion 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 28, 2013, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 is an internationally famous entertainer and musical artist who per-forms under the name and mark STEVIE WONDER.
Complainant launched his musical career under the stage name “Little Stevie Wonder,” releasing the album Stevie Wonder: The 12 Year Old Genius in 1963.
Complainant has won more than twenty-five Grammy Awards (including Lifetime Achievement [1996], Best Male Pop Vocal Performance [2006], and Best Pop Collaboration with Vocals [2007]), and an Academy Award for Best Original Song [1985].
Complainant has been inducted into both the Rock and Roll Hall of Fame (1989) and the Songwriter's Hall of Fame (1983), and is a recipient of the Kennedy Center Honors award (1999).
Complainant holds a registration for the STEVIE WONDER service mark, on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,600,739, registered July 30, 2002.
Respondent registered the contested <littlesteviewonder.com> domain name on June 25, 2012.
The domain name is confusingly similar to Complainant’s STEVIE WONDER mark.
Respondent has not been commonly known by the domain name.
Complainant has no relationship with the Respondent, and Complainant has not given permission to Respondent to register or use the contested domain name.
The domain name resolves to a GoDaddy landing page incorporating online ads and links to third-party websites promoting the sale of goods and services unrelated to Complainant.
Such a use is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name.
Respondent derives commercial benefit, in the form of click-through fees, for re-directing Internet users to commercial websites by means of the domain name.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant and its rights in the STEVIE WONDER mark when it registered the <littlesteviewonder.com> domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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."
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the STEVIE WONDER service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that a UDRP complainant had sufficiently established rights in the SKUNK WORKS mark through its registration of the mark with the USPTO).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a re-view of the record that Respondent’s <littlesteviewonder.com> domain name is confusingly similar to Complainant’s STEVIE WONDER mark. The domain name contains the entire mark, with the removal of the space between the terms of the mark and the addition of the term “little,” which relates to Complainant’s stage name, and the generic top-level domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not avoid the realm of confusing similarity under the standards of the Policy. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007), finding that:
spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. There-fore, the panel finds that the disputed domain name is confusingly similar to the complainant’s mark.
As to inclusion of the term “little” in the domain name, see Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where the disputed domain name <kohlerbaths.com> contained a UDRP complainant’s mark in its entirety, adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the <littlesteviewonder.com> domain name, that Complainant has no relationship with the Respondent, and that Complainant has not given Respondent permission to register or use the contested domain name. Moreover, the WHOIS information for the contested domain name identifies the registrant only as “read read read,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See, for example, Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by the disputed domain name).
We next observe that Complainant asserts, without objection from Respondent , that Respondent has not used the <littlesteviewonder.com> domain name in connection with a bona fide offering of goods or services or a legitimate non-commercial or fair use, in that the domain name resolves to a GoDaddy landing page from which Respondent attempts to profit by carrying online ads and links to third-party websites promoting the sale of goods and services unrelated to Complainant. This employment of the domain name is neither a bona fide offer-ing of goods or services under Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use under Policy ¶ 4(c)(iii). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) where a panel found that a respondent’s appropriation of a UDRP complainant’s mark in a domain name which was confusingly similar to that mark for the purpose of displaying unrelated hyperlinks illustrated a lack of rights and legitimate interests in the domain name.
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent attempts to profit from the employment of the disputed domain name in the manner described in the Com-plaint, and that this use of the domain name evidences bad faith in its regis-tration and use as provided in Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005):
the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the STEVIE WONDER service mark when Respondent regis-tered the <littlesteviewonder.com> domain name. This too is proof of bad faith registration of the domain name. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent had knowledge of a UDRP complainant's rights in the UNIVISION mark when it registered the disputed domain name).
Accordingly, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <littlesteviewonder.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 11, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page