Human Rights Watch v. Mel Finoden
Claim Number: FA1412001593268
Complainant is Human Rights Watch (“Complainant”), represented by Martin P. Michael of Dentons US LLP, New York, USA. Respondent is LCOB / MEL FINODEN (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <humanrightswatch.com>, registered with eNom, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 3, 2014; the National Arbitration Forum received payment on December 3, 2014.
On December 4, 2014, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <humanrightswatch.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 4, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 24, 2014 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@humanrightswatch.com. Also on December 4, 2014, 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 December 31, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <humanrightswatch.com> domain name is identical to Complainant’s HUMAN RIGHTS WATCH mark.
2. Respondent does not have any rights or legitimate interests in the <humanrightswatch.com> domain name.
3. Respondent registered and uses the <humanrightswatch.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns registrations for its HUMAN RIGHTS WATCH mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,682,853, registered Feb. 4, 2003). Complainant uses the HUMAN RIGHTS WATCH mark to identify its efforts promoting and protecting human rights worldwide.
Respondent registered the <humanrightswatch.com> domain name on March 17, 2005, and uses it to promote links such as “Human Rights Watch,” “Human Rights Watch Jobs,” “Africa,” and “Volunteer Jobs.”
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.
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.”).
The Panel finds that Complainant’s USPTO registration of its HUMAN RIGHTS WATCH mark sufficiently demonstrates Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (holding that a trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).
Respondent’s <humanrightswatch.com> domain name is identical to the HUMAN RIGHTS WATCH mark, as the gTLD “.com” does not affect the confusing similarity analysis, nor does the omission of spacing. Prior panels have held that omission of spacing is not distinctive as spaces are not replicable in domain names, and the addition of gTLDs are similarly irrelevant to the confusing similarity analysis as a TLD is required of all domain names. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel finds that the <humanrightswatch.com> domain name is effectively identical to Complainant’s HUMAN RIGHTS WATCH mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent 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 argues that Respondent lacks rights or legitimate interests in the disputed domain name, and is not commonly known by the name “Human Rights Watch.” Complainant states that it has not authorized Respondent’s use of its HUMAN RIGHTS WATCH mark. The WHOIS lists “MEL FINODEN” of “LCOB” as the registrant of record. Therefore, the Panel finds that Respondent is not commonly known by the <humanrightswatch.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Complainant argues that Respondent has not used the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Complainant alleges that Respondent uses the disputed domain name to promote links such as “Human Rights Watch,” “Human Rights Watch Jobs,” “Africa,” and “Volunteer Jobs,” and that Respondent earns pay-per-click revenue from the promoted links. The Panel agrees and finds that Respondent’s use of the disputed domain name in connection with monetized links relating to Complainant does not constitute a bona fide offering of goods or services as protected by Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use as covered by Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has engaged in bad faith registration and use, as demonstrated by prior UDRP decisions adverse to Respondent, and directs the Panel to Mead Johnson & Co., LLC v. LCOB / Mel Finoden, FA 1417918 (Nat. Arb. Forum Jan. 12, 2012) as an example of Respondent’s history of bad faith. Prior panels have found bad faith where the respondent has been found to have acted in bad faith in prior UDRP proceedings. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations). Thus, the Panel finds a continued pattern of bad faith pursuant to Policy ¶ 4(b)(ii).
Next, Complainant argues that Respondent has attempted to trade on the goodwill associated with Complainant. Respondent no doubt generates revenue by redirecting Internet users to the website resolving from the disputed domain name via click-through links, which appear to be related to Complainant’s human rights efforts. The Panel thus finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv).
Finally, Complainant claims that Respondent registered the disputed domain name despite knowledge of Complainant and its HUMAN RIGHTS WATCH mark, and argues that registration with such knowledge amounts to bad faith under Policy ¶ 4(a)(iii). While previous panels have been hesitant to find evidence of bad faith based on constructive knowledge, panels have inferred actual knowledge where the circumstances warrant. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant’s mark when it registered the domain name, panels can find bad faith). The Panel infers that Respondent had actual knowledge of Complainant and its HUMAN RIGHTS WATCH mark at the time of registering the disputed domain name, further evidence of Policy ¶ 4(a)(iii) bad faith.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <humanrightswatch.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 6, 2015
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