Theresa Weiss v. FREE SPIRIT / FREE SPIRIT (LEGAL NAME)
Claim Number: FA1504001612808
Complainant is Theresa Weiss (“Complainant”), represented by Theresa Weiss, Colorado, USA. Respondent is FREE SPIRIT / FREE SPIRIT (LEGAL NAME) (“Respondent”), United Kingdom; Spain; and United States of America.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <powerplaces-tours.com> registered with Register.com, Inc.; <powerplacestoursreviews.com> registered with Launchpad.com Inc.; and <powerplacestoursgreggbraden.com>, registered with Webfusion Ltd.
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.
Mark McCormick as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 2, 2015; the Forum received payment on April 2, 2015.
On April 6, 2015, Register.com, Inc. confirmed by e-mail to the Forum that the <powerplaces-tours.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 April 6, 2015, Launchpad.com Inc. confirmed by e-mail to the Forum that the <powerplacestoursreviews.com> domain name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the name. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com 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 April 3, 2015, Webfusion Ltd. confirmed by e-mail to the Forum that the <powerplacestoursgreggbraden.com> domain name is registered with Webfusion Ltd. and that Respondent is the current registrant of the name. Webfusion Ltd. has verified that Respondent is bound by the Webfusion Ltd. 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 April 9, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 29, 2015 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@powerplaces-tours.com, postmaster@powerplacestoursreviews.com, postmaster@powerplacestoursgreggbraden.com. Also on April 9, 2015, 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.
A timely Response was received and determined to be complete on April 27, 2015.
On May 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Mark McCormick as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 names be transferred to her.
A. Complainant
Complainant uses the POWER PLACES mark in connection with its business in the travel tour operating and organizing industry. Complainant has registered the POWER PLACES mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,462,490; registered January 7, 2014), which establishes its rights in the mark. Respondent’s <powerplaces-tours.com>, <powerplacestoursreviews.com>, and <powerplacestoursgreggbraden.com> are confusingly similar to the POWER PLACES mark as each incorporates the mark in its entirety and adds the descriptive word “tours”, and/or a hyphen, “.com” generic top-level domain (“gTLD”), the generic term “reviews”, or the name “Gregg Braden.”
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names and has not been authorized by Complainant to register the POWER PLACES mark in connection with any domain name registration. Further, Respondent is not using the disputed domain names in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Rather, Respondent has used his disputed domain names in an attempt to tarnish the reputation of Complainant.
Respondent has used the disputed domain names in bad faith. Respondent has attempted to sell Complainant the disputed domain names for $30,000.00, evincing bad faith per Policy ¶ 4(b)(i). Respondent has registered multiple domain names in the current instance, evincing a pattern of domain registrations per Policy ¶ 4(b)(ii). Finally, Respondent’s use of the <powerplaces-tours.com>, <powerplacestoursreviews.com>, and <powerplacestoursgreggbraden.com> domain names constitute bad faith disruption under Policy ¶ 4(b)(iii) and have been explicitly stated by the Respondent to have been registered for the purpose of damaging Complainant’s reputation as a business entity.
B. Respondent
The <powerplaces-tours.com>, <powerplacestoursreviews.com>, and <powerplacestoursgreggbraden.com> domain names are comprised of generic terms, which should not be taken as confusingly similar under Policy ¶ 4(a)(i).
Respondent operates review sites which demonstrate certain aspects of Complainant’s business and thus has rights and legitimate interests under Policy ¶ 4(a)(ii).
Respondent seeks a refund of lost expenses paid to Complainant as part of a tour booking that Respondent cancelled. Respondent has exercised free speech via his use of the <powerplaces-tours.com>, <powerplacestoursreviews.com>, and <powerplacestoursgreggbraden.com> domain names and cannot be considered to have acted in bad faith per Policy ¶ 4(a)(iii).
Complainant is attempting reverse domain name hijacking by bringing this action to silence Respondent.
Complainant Theresa Weiss operates a travel tour business. She uses the POWER PLACES mark in connection with her business and registered it with the USPTO on January 7, 2014. She organizes tours under the name “Power Place Tours.”
Respondent is an individual who identifies himself as “Free Spirit.” He portrays himself as a “Spiritual Master” who acquired wisdom through his relationship with Intergalactic Star Beings. Complainant invited Respondent to participate and speak at a “spiritual site” in Yucatan, Mexico scheduled for December 13-22, 2012. Respondent agreed and asked that his then wife be added as an additional participant and speaker. Complainant granted his request. Respondent subsequently started an action to terminate his marriage and asked Complainant to remove his wife from the tour. When Complainant refused to do so, Respondent refused to participate in the tour and sought a refund of the money he had paid for his participation. Complainant refused his request on the ground it was untimely.
Characterizing Complainant’s conduct as “bullying,” Respondent registered the disputed domain names and uses them to post communications calculated to disrupt Complainant’s business. In a posting on his website <keystoimmortality.com> on March 15, 2015, he advised people “How to Deal with Major Bullies.” Among other things, he stated the following:
5. If a big company or other business is involved and they continue the abuse instead of apologizing – buy up a domain name very similar to the domain name of the business.
Post your reviews and evidence on that site. In time, if you are good at SEO, there will be a permanent record of your experience for everyone also to see who searches for the complaint online.
He asserted that he had caused Complainant to lose “a million dollars or so due to bad PR because of what truths I wrote and shared online. . . .”
Respondent registered the disputed domain names to attract persons searching for Complainant’s website to sites on which he posted material calculated to disrupt and harm Complainant’s business.
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.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Panel finds that because the three disputed domain names were registered by the same individual who has control over them, the Complaint relates to them jointly within the meaning of Paragraph 3(c) of the Rules.
Complainant’s registration of her POWER PLACE mark with the USPTO demonstrates rights in the mark within the meaning of Policy ¶ 4(a)(i), even to the extent Respondent operates in a different country. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010).
Respondent’s disputed domain names are confusingly similar to Complainant’s POWER PLACES mark because each incorporates the mark in its entirety and the descriptive terms added to the mark by Respondent are insufficient to overcome a finding of confusing similarity. See Eastman Chem. Co. v. Patel, FA 524752 (Nat. Arb. Forum Sept. 7, 2005). In fact, Respondent plainly intended to cause and take advantage of the resulting confusing similarity. Complainant has established that the disputed domain names are confusingly similar to Complainant’s mark within the meaning of Policy ¶4(a)(i).
Because Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, the burden shifted to Respondent to show that he had rights or legitimate interests in the domain names. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). The record shows that Respondent is not commonly known by the disputed domain names.
Moreover, he does not use them for any bona fide offering of goods or services or any legitimate noncommercial or fair use. Instead, Respondent has used them in an effort to coerce Complainant to make payments to him and to tarnish Complainant’s business, even taking credit for success in harming Complainant’s business. Respondent contends he has used the domain names as a review site of Complainant, which is a legitimate use. The Panel finds, however, that Respondent has used the domain names in an attempt to harm Complainant’s business for its refusal to pay money to Respondent that Respondent attempted to extort from her. That is not a legitimate or fair use. See Smith v. Network Operations Ctr., FA 371622 (Nat. Arb. Forum Jan. 13, 2005). Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain names within the meaning of Policy ¶4(c)(i) and (iii).
The record shows that Respondent requested payment of $30,000 from Complainant as the price for Respondent to remove “every single video, review and blog” that Respondent had posted that had harmed Complainant’s business. Referring to Complainant’s refusal to pay Respondent what he had previously demanded upon his cancellation of participation in the Yucatan tour, he said, “Perhaps if you had just paid Jeanette and myself at the time you could have saved yourselves a LOT of bother. You may find not settling with me could become very expensive longer term in terms of lost business.”
The Panel finds that Respondent registered and used the disputed domain names in an effort to harm Complainant’s business because of Complainant’s refusal to pay Respondent the sums demanded by him. Respondent contends he merely exercised his right of free speech. In fact, however, he used the domain names to retaliate against Complainant for not submitting to his demands for money and to coerce Complainant into submitting to those demands. Respondent registered and used the domain names in bad faith within the meaning of Policy ¶ 4(b)(i). See Ingram Micro Inc v. Noton Inc., D2001-0124 (WIPO Mar. 6, 2001). Also, Respondent’s registration of the three domain names constituted a pattern of bad faith registration. See EPA European Pressphoto Agency B.V. v. Wilson, D2004-1012 (WIPO Feb. 9, 2005).
Based on this determination, the Panel also finds that Respondent’s claim of reverse domain name highjacking is without merit.
Because Complainant has established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <powerplaces-tours.com>, <powerplacestoursreviews.com>, and <powerplacestoursgreggbraden.com> domain names be TRANSFERRED from Respondent to Complainant.
Mark McCormick, Panelist
Dated: May 27, 2015
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