Tea Party Patriots Inc. v.
Ulti-Media LLC
Claim Number: FA1001001305291
PARTIES
Complainant is Tea Party Patriots Inc. (“Complainant”), represented by Kevin
W. Grierson, of FSB Legal Counsel,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <teaparty-patriots.com>, registered
with Godaddy.com,
Inc.
PANEL
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.
Héctor A. Manoff as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on January 28, 2010. With its Complaint, Complainant also chose to
proceed entirely electronically under the new Rules for Uniform Domain Name
Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for
Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) by
submitted an “opt-in” form available on the Forum’s website.
On January 29, 2010, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <teaparty-patriots.com> domain name
is registered with Godaddy.com, Inc. and
that the Respondent is the current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and
has thereby agreed to resolve domain-name disputes brought by third parties in
accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On February 1, 2010, the Forum
served the Complaint and all Annexes, including a Written Notice of the
Complaint, setting a deadline of February 22, 2010 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@teaparty-patriots.com. Also on February
1, 2010, 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 February 22, 2010. Respondent chose to opt-in to the electronic
process with its submission and submitted its Response in electronic copy only.
On March 1, 2010, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Héctor A. Manoff as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. The disputed domain name <teaparty-patriots.com> is
confusingly similar to Complainant’s pending
2. Complainant first used the mark in commerce in March of 2009.
3. During 2009, Complainant has
become extremely well-known in the
4. Respondent has no rights in the domain name, since he registered it after Complainant had begun using its mark (April 21, 2009) and become very well-known nationally.
5. Respondent’s services mirror that of Complainant’s to some extent, which makes Respondent a competitor.
6. Respondent is not commonly known by the name TEA PARTY PATRIOTS.
7. Respondent’s use of the <teaparty-patriots.com> domain is not a legitimate use of Complainant’s name, because it diverts those seeking Complainant’s web site to Respondent’s site to seek support for similar causes.
8. Respondent has registered, and is using, the <teaparty-patriots.com> domain name in bad faith.
B. Respondent
1. The <teaparty-patriots.com> domain name was a natural spin-off of Respondent’s previously
registered go-patriots.com domain name, which included similar information to
that of the <teaparty-patriots.com>
website.
2.
Respondent
has been using go-patriots long before the tea party became an entity.
3. Complainant’s registration of its mark Tea Party Patriots specifically
includes a disclaimer regarding the right to use “tea party”.
4. Respondent has not publically posted requests for funding or donations
to support his cause nor does he sell or perpetuate the sales of product or
information.
5. Respondent’s history clearly indicates a long standing pattern of fair use
and without the review of this history any unsubstantiated assumptions by the
Complainant as to the Respondents intent or motives are creative speculation.
6. There is no commercial gain in furnishing useful information that is
already in the public domain.
FINDINGS
Trademark Dispute Outside the Scope of the
UDRP
Complainant argues that it has established common law rights in its TEA PARTY PATRIOTS mark, although it does not provide evidence to support that assertion.
Moreover, Complainant’s alleged first use of its mark dates back to less than two months before Respondent’s registration of the disputed domain name.
Respondent claims that anyone in the tea party political movement has rights to use the TEA PARTY mark and that numerous domain names containing the mark are proof of this fact.
The Panel finds that the Complaint does not address the narrow area of
abusive domain name registrations, but, rather, general trademark law, and it
is outside the scope of the UDRP. (See David Pearlstein
a/k/a Show Business Inc. v. Soft Image Systems FA0708001053372 (Nat. Arb. Forum September 18,
2007) (holding that the purpose of the Policy is not to resolve disputes between parties who might each have
legitimate rights in a domain name. The purpose of the Policy is to
protect trademark owners from cybersquatters, that is, from people who abuse
the domain name system in a very specific way, which specific way is outlined
in Paragraph 4(a) of the Policy.) See also Commercial Publishing Co. v. EarthComm, Inc., FA
95013 (Nat. Arb. Forum July 20, 2000), (where the Panel indicated that
legitimate disputes should be decided by the courts: The adopted policy
establishes a streamlined, inexpensive administrative-dispute resolution
procedure intended only for the relatively narrow class of cases of “abusive
registrations.” Thus, the fact that the policy’s administrative
dispute-resolution procedure does not extend to cases where a registered domain
name is subject to a legitimate dispute is a feature of the policy, not a
flaw. The policy relegates all “legitimate disputes” to the courts.
Only cases of abusive registrations are intended to be subject to the
streamline administrative dispute-resolution procedure.)
DECISION
Having determined that the present complaint falls outside the scope
of the Policy,
the Panel concludes it should be dismissed without prejudice.
Accordingly, it is Ordered that the complaint be dismissed without
prejudice.
Héctor A. Manoff, Panelist
Dated: March 15, 2010
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